The main legal point established in the judgment is the necessity of proving valid service of notice to the accused as required under Section 138 of the Negotiable Instruments Act, 1881.

JUDGMENT

H.B.Prabhakara Sastry, J. - In the complaint filed by the present appellant under Section 200 of Code of Criminal Procedure, 1973, against the present respondent, for the offence punishable under Section 138 of Negotiable Instruments Act, 1881 (hereinafter for brevity referred to as 'N.I.Act'), the learned XXII Addl.Chief Metropolitan Magistrate and XXIV Addl.Small Causes Judge, Bengaluru City, (hereinafter for brevity referred to as 'trial Court'), by the judgment dated 10.11.2010, passed in C.C.No.29549/2007, acquitted the respondent/accused of the said offence. Aggrieved by the same, the complainant/appellant has preferred the present appeal.

2. The summary of the case of the complainant in the trial Court is that, himself and the accused were well known to each other. The accused approached him in the month of February 2007, for a financial assistance of a sum of Rs. 1,50,000/- to meet his family necessities and to improve his sand business. On the promise that the accused would repay the loan amount within six months from the date of its receipt, the complainant gave him a cash loan of Rs. 1,50,000/- in February 2007. Towards his liability, the accused issued him a cheque bearing No.450367, dated 1.9.2007, for the said sum of Rs. 1,50,000/-, which was drawn on Canara Bank, Srirampuram Branch, Bengaluru, in favour of the complainant. When the complainant presented the said cheque for its realisation to his Banker, it came to be dishonoured for the reason of "insufficiency of funds". Thereafter, the complainant issued a statutory notice to the accused, both through Registered Post Acknowledgement Due and under Certificate of Posting. The notice sent through Registered Post Acknowledgement Due was returned with the postal shara "Absent intimation delivered", on 3.10.2007. However, the notice sent through Certificate of Posting was not returned, as such, it was served on the accused. Since the accused did not repay the cheque amount demanded in the notice, the complainant was constrained to institute a case against him in the trial Court for the offence punishable under Section 138 of N.I.Act.

3. The respondent who was the accused in the trial Court appeared and contested the matter. In order to prove the guilt of the accused, the complainant examined himself as PW-1 and got marked documents from Exs.P-1 to P-6. The accused got himself examined as DW-1 and got marked one document at Ex.D-1. During the course of cross-examination of DW-1, the summons issued by the trial Court was marked as Ex.C-1.

4. After hearing both side, the trial Court by its impugned judgment dated 10.11.2010, acquitted the accused of the offence punishable under Section 138 of N.I.Act.

5. The trial Court records were called for and the same are placed before this Court.

6. In view of the fact that the learned counsel for the respondent failed to appear before this Court on several dates of hearing and also considering the fact that this appeal was nine years old appeal, this Court by its order dated 22.9.2020, appointed learned counsel Smt.P.V.Kalpana , as Amicus Curiae for the respondent.

7. Heard the arguments of learned counsel for the appellant and the learned Amicus Curiae for the respondent and perused the materials placed before this Court.

8. For the sake of convenience, the parties would be referred to as per their ranks before the trial Court.

9. After hearing, the points that arise for my consideration are :

1) Whether the complainant has proved beyond reasonable doubt that the accused has committed an offence punishable under Section 138 of N.I.Act as alleged in the complaint?

2) Whether the judgment under appeal deserves an interference at the hands of this Court?

10. Learned counsel for the appellant in his brief arguments canvassed only one point that the trial Court acquitted the accused holding that there is no proof of service of notice upon him. It ignored the fact that the house number of the accused which was 'J-152' was by