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2005(2) Bankmann 316
RAJASTHAN HIGH COURT
H.R. Panwar, J.
Depak Chordia — Petitioner
versus
Rajendra Sen — Respondent
S.B. Criminal Leave to Appeal No. 424 of 2002
Decided on 26.8.2004
IMPORTANT POINT
Provisions of Section 138 of the Negotiable Instruments Act not contemplates for constructive notice.
Headnote:Negotiable Instruments Act, 1881—Section 138—Dishonour of cheque—Appeal against acquittal—Return of statutory notice with endorsement ‘accused not found’—Notice not sent to correct address—Mere return of unserved notice, not lead to presumption of service thereof—Due to non-service of notice no cause of action occurred—Complaint rightly dismissed for want of cause of action.
Fact of the CaseL
(A)By the instance leave to appeal, appellant-complainant challenged the order of acquittal of accused by the lower appellate court. In discharge of his liability the accused alleged to have issued two cheques which were not honoured on account of closure of account in the Bank. The appellant got issued a legal notice but that was returned as not available. Thereafter, the appellant filed the complaint which was allowed by the trial Court. However, an appeal by the accused, the order of conviction has been reversed.
(B)There is no evidence led by the appellant that the notice was sent at the correct address of the accused. The address given on the notice is different from the present address of the accused given in memo of leave of appeal. It is not the case of the complainant that at the relevant time, the accused was available at address given in the notice. In absence of such averment, no lawful presumption can be drawn that notice was sent to correct address. On account of non-service of notice, no cause of action accrued and the complaint filed by the appellant liable to be dismissed for want of cause of action. Appeal dismissed.
Favour :Respondent.
H. R. Panwar, J.—By the instant leave to appeal, appellant-complainant has challenged the impugned Judgment dated 27.8.2002 passed by the learned Additional Sessions Judge No.3, Udaipur {for short, “the lower Appellate Court”), by which the appeal filed by respondent-accused has been allowed and he has been acquitted of the offence under Section 138 of the Negotiable Instruments Act {for short, “the Act”) reversing the Judgment of conviction and sentence dated 31.1.2002 passed by the learned Additional Chief Judicial Magistrate No.2, Udaipur {for short, “the Trial Court”).
2. The facts of the case, relevant and necessary for disposal of this leave to appeal, are that in pursuance to the agreement Ex.D/1 on record to Trial Court, the appellant-complainant (sic) of marble cutting work for the accused-respondent and in lieu thereof, the accused-respondent issued two cheques dated 3.10.1999 and 3.11.1999 for a sum of Rs. 1,15,000/- and 50,000/-, respectively. In the presentation, the bank dishonoured those cheques. However, on 15.1.2000, the accused-respondent gave a sum of Rs. 45,000/- in cash to the appellant complainant and for rest amount, two cheques for Rs. 60,000/- each were given to the appellant-complainant but on presentation, those cheques could not be honoured because of closure of bank account by the accused-respondent. The appellant-claimant serve a registered notice dated 24.3.2000 through his advocate, which was returned with the endorsement that despite various attempts the accused-respondent was not found available. The learned Trial Court, after hearing the parties, vide Judgment dated 31.1.2002, allowed the complaint, convicted the accused-respondent for the offence under Section 138 of the Act and sentenced him to the simple imprisonment for one year and a fine of Rs. 1,60,000/- and in default of payment thereof further to undergo one month’s simple imprisonment. Being aggrieved and dissatisfied by the Judgment dated 31.1.2002 passed by the Trial Court, the accused-respondent preferred an appeal before the learned lower appellate Court, which has been allowed vide impugned Judgment dated 27.8.2002. Hence this leave to appeal.
3. I have heard learned counsel for the parties and perused the Judgments passed by the Courts below as well as the record.
4. The main thrust of arguments advanced by the learned counsel for the appellant-complainant is that the learned lower appellate Court has erred in law and on facts in acquitting the accused-respondent on the ground that there was no proper service of notice upon the accused-respondent. The contention of the learned counsel for the appellant-complainant is that there was deliberate evasion by the accused-respondent to accept the notice, which would amount to constructive notice.
5. On the other hand, learned counsel for the accused-respondent has contended that the Scheme of the Act does not envisage constructive notice under sub-sec, (c) of Section 138 of the Act and as such the complaint was liable to be dismissed for want of proper notice. In support of his contention, learned counsel for the accused-respondent has placed reliance upon. R.M. Sundaram v. C.M. Ramraj1.
6. The pertinent question arises for consideration is: whether there was proper service of the notice sent upon the accused-respondent for holding him liable for the offence under Section 138 of the Act. In the instant case, the registered notice Ex. P/5 dated 24-3-2000 was sent by the appellant-complainant through his counsel to the accused-respondent at the address; 19, Diamond Complex, Bedla, Udaipur, whereas in the memo of leave to appeal apart from the aforesaid address, the present address of the accused-respondent has been given as: 112, Navratan Complex, Bedla Road, Udaipur. The said notice has been returned with the endorsement that despite attempts for 7 days, the accused-respondent was not found. There is no endorsement to the effect that the accused-respondent refused, avoided or dec
