The service of notice is a crucial requirement for constituting the offence under section 138 of the Negotiable Instruments Act, 1881, and any defect in the notice cannot be considered as technical in nature.

ORDER :

The petitioner was put on trial for offence under section 138 of the Negotiable Instruments Act, 1881 (for short the `Act') and the 2nd Additional Judicial Magistrate First Class, Bagalkot by its judgment and order dated 24.11.2008 held him guilty of the said offence and sentenced him to undergo simple imprisonment for six months and pay fine of Rs.1,15,000/- with default clause. The trial court further directed that out of the aforesaid amount, a sum of Rs.1,05,000/- shall be paid to the complainant. Aggrieved by the same, the petitioner preferred Criminal Appeal No.114 of 2008 and the Sessions Judge, Bagalkot by its judgment and order dated 09.07.2009 set aside the petitioner's conviction and acquitted him of the charge.

2. The complainant assailed the aforesaid order before the High Court which has set aside the order of the appellate court and restored that of the learned Magistrate. The petitioner, aggrieved by the said order, has preferred this special leave petition.

3. Leave granted.

4. Despite service of notice on the respondent, nobody has chosen to appear on his behalf.

5. Mr. S.N. Bhat, learned counsel appearing for the appellant, raises a very short point. He submits that the appellant was not served with the notice and therefore, one of the ingredients constituting the offence has not been satisfied. Hence, the appellant deserves to be acquitted on this ground alone. In this connection, he has drawn our attention to a finding recorded by the appellate court in which it has been held that the service of notice on the accused was not satisfactorily proved.

6. We have bestowed our consideration to the submission made by Mr. Bhat.

7. The appellate court while acquitting the appellant has held that the complainant had not been able to prove that the notice was validly served on the appellant. That is one of the ingredients which constitute the offence. The High Court termed the said defect in the case of complainant to be technical in nature. We are of the opinion that service of notice is one of the ingredients for constituting the offence and therefore, the High Court erred in terming the same to be of technical nature. On this ground alone, the order of the High Court cannot be allowed to stand.

8. The amount, if deposited, be returned to the appellant.

9. In the result, we allow this appeal, set aside the impugned order passed by the High Court, acquit the appellant and affirm the order of the appellate court.