IMPORTANT POINT
Proper service of notice under Section 138 is crucial, but if sent to the last known address, it is deemed sufficient, maintaining the presumption in favor of the complainant.

ORDER :

Heard Sri Sateesh Chandra K.V., learned counsel for the revision petitioner, and Sri G. Lakshmeesh Rao, learned counsel for the respondent.

2. The accused who suffered an order of conviction under Section 138 of the Negotiable Instruments Act, 1881 (for short, 'Act') in Criminal Case No.17 of 2016 confirmed in Criminal Appeal No.131 of 2019 has preferred this revision petition.

3. The facts in brief which are utmost necessary for disposal of this revision petition are as under:

A complaint came to be filed under Section 200 of the Code of Criminal Procedure, 1908 (for short, 'Cr.P.C.') alleging the commission of offence under Section 138 of the Act by contending that the accused sought financial assistance from the complainant in a sum of Rs.65,000/- and towards repayment of the same, a cheque bearing No.956788 dated 16-12-2013 in a sum of Rs.65,000/- was issued by him, drawn on State Bank of Mysuru, Shivamogga Branch. The said cheque on presentation came to be dishonoured with an endorsement 'funds insufficient'. Legal notice issued to the accused returned with an endorsement 'Not claimed'. Thereafter, the complainant sought for action.

4. Learned trial Magistrate after following the necessary formalities, secured the presence of the accused and recorded the plea. The accused pleaded not guilty. Therefore, the trial was held.

5. In order to prove the case of the complainant, the complainant got examined himself as PW1 and placed on record six documents which are executed and marked as Exs.P1 to P6. Cross-examination of PW1 did not yield any positive material so as to rebut the presumption.

6. The accused's statement as is contemplated under Section 313 of the Cr.P.C. was recorded, wherein the accused has denied all the incriminating circumstances.

7. As against the evidence placed on record by the complainant, the accused got examined himself as DW1 and placed on record two documents as Exs.D1 and D2 which are the certified copies of private complaint filed by the accused against one Praveen Kumar and another person in P.C.R No.868 of 2013 and certified copy of the objections filed to 'B' report in the said private complaint.

8. On conclusion of the recording of the evidence on both sides, the learned trial Magistrate heard the parties and considering the rival contentions of the parties, found that the material evidence placed on record by the accused was not sufficient to rebut the presumption available to the complainant under Section 139 of the Act and convicted the accused and imposed a fine of Rs.75,000/- and out of the same, a sum of Rs.65,000/- was ordered to be paid as compensation and balance sum of Rs.10,000/- towards defraying expenses of the State.

9. Being aggrieved by the same, the accused preferred an appeal before the District Court in Criminal Appeal No.131 of 2019.

10. The learned Judge in the First Appellate Court after securing the records, hearing the parties in detail, dismissed the appeal of the accused by judgment dated 12-3-2021.

11. Thereafter, the accused is before this Court in this revision petition.

12. Sri Sateesh Chandra K.V., learned counsel for the revision petitioner, reiterating the grounds urged in the revision petition, contended that the material on record, especially, with regard to issuance of notice and non- service thereof, both the Courts have not properly appreciated the admission made by PW1 in the cross- examination whereunder, the complainant has categorically admitted that he accompanied the Postman and got a shara returned stating that 'Not claimed' even though the accused was not residing in the said address whereby, the learned trial Magistrate ought not to have taken cognizance of the offence punishable under Section 138 of the Act.

13. Learned counsel also pointed out that misuse of the cheque issued in favour of one Praveen Kumar, Advocate, the accused has taken necessary action by filing a private complaint against said Praveen Kumar and yet another person and such a positiv