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2008(1) Bankmann 227 (Kar.)
KARNATAKA HIGH COURT
K. Sreedhar Rao, J.
Umraz Khan —Appellant
versus
A. Jameel Ahmed and Anr. —Respondents
Criminal Appeal No. 360 of 1999
Decided on 13.3.2006
Counsel for the Parties:
For the Appellant:Mr. Abdul Rasheed, Advocate.
For the Respondents:Mr. Sateesh M. Doddamani, Advocate.
IMPORTANT POINT
Once there is proof of posting of notice to correct address, it is deemed to have been served.
Headnote:Negotiable Instruments Act, 1881—Section 138—Dishonour of cheque—Notice of demand—Valid service—A family member of accused received the notice—Accused has not led in any contra evidence to prove that he has not received any notice through his family member—Notice deemed to be served. (Para 3)
Facts of the Case:
The appellant/complainant prosecuted respondent/accused for an offence under Section 138 of N.I. Act. The accused admitted issuance of cheque but disputed issuance of notice as required under Section 138 of N.I. Act.
The Trial Court convicted the accused. The Sessions Judge acquitted the accused on the ground that registered notice issued is received by the family members as per the acknowledgement. Therefore, there is no valid service of notice on the accused.
Hence this appeal.
Finding of the Court:
Judgment of acquittal is bad in law. Set aside. Accused convicted.
Result: Appeal allowed.
K. Sreedhar Rao, J.—The appellant/complainant prosecuted the respondent/accused for an offence under Section 138, N.I. Act. The fact of issuance of cheque Ex. P1 and its dishonour is validly proved by the complainant. A copy of the registered notice issued to the accused is marked at Ex. P3. Ex. P4 is the postal acknowledgement. Ex. P5 is the postal receipt. The complainant has examined himself. The accused has admitted issuance of cheque but disputes the issuance of notice as required under Section 138, N.I. Act. The Trial Court convicted the accused. The Sessions Judge in appeal acquitted the accused on the ground that the registered notice issued is received by the family members as per the acknowledgement. Therefore, there is no valid service of notice on the accused.
2. The Supreme Court in the case of V. Raja Kumari v. P. Subbarama Naidu,1 has observed in Para l4
that:
“l4. No doubt Section 138 of the Act does not require that the notice should be given only by ‘post’. Nonetheless the principle incorporated in Section 27 (quoted above) can profitably be imported in a case where the sender has despatched the notice by post with the correct address written on it. Then it can be deemed to have been served on the sendee unless he proves that it was not really served and that he was not responsible for such non-service. Any other inter-pretation can lead to a very tenuous position as the drawer of the cheque who is liable to pay the amount would resort to the strategy of subterfuge by successfully avoiding the notice.”
3. In the said decision, the Supreme Court has held that once there is proof of posting of notice to correct address, it is deemed to have been served. In the instant case, the facts stand on a better footing. A family member of the accused has received the notice. The accused has not led in any contra evidence to prove that he has not received any notice through his family member. In that view, the judgment of acquittal is bad in law.
4. Appeal is allowed. The accused is convicted for an offence under Section 138, N.I. Act. The accused is imposed a fine of Rs.1,00,000 in default, to suffer S.I. for a period of one year. Out of the fine amount, Rs. 95,000 shall be payable to the complainant. The balance to be appropriated by the State towards prosecution expenses.
Appeal allowed.
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