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KARNATAKA HIGH COURT
A.N. Venugopala Gowda, J.
M.S. Srikara Rao —Petitioner
versus
H.C. Prakash —Respondent
Criminal Revision Petition No. 356 of 2011
Decided on 15.11.2012
Counsel for the Parties:
For the Petitioner:Sri M.S. Raghavendra Prasad, Advocate.
For the Respondent:Sri Dinesh Kumar K. Rao for Sri R.B. Deshpande, Advocate.
IMPORTANT POINT
When the notice is sent by registered post by correctly addressing the drawer of the cheque, the mandatory requirement of issue of notice in terms of clause (b) of proviso to Section 138 of the Act stands complied with.
Headnote:Complaint alleging dishonour of cheque—Conviction by Courts below—Revision petition thetreagainst on plea that basic requirement of initiation of proceeding is service of notice and there being incorrect description of addressee on the notice and also on the postal envelopes, i.e., ‘an initial’ being different, there being no service of statutory notice, the complaint, which had no cause of action, ought to have been dismissed as not maintainable—The postal endorsement Ex. P6(a) clearly proved that addressee accused had avoided to receive the letter addressed to him without specifically refusing to receive it—There was a scheming act on the part of the accused, to avoid the service of Ex. P6- Because of his act in pointing out the difference in the initial ‘M.S.’ instead of ‘M.N.’, the notice given and sent was returned, which could be attributed to the accused own conduct—The address shown on the postal communications, concededly, was the correct residential address of the accused—Hence, it was for the accused to prove that postman did not tender to him the registered envelope containing Ex. P6— On account of the scheming act of avoidance by the addressee i.e., the accused, the postman had returned the RPAD envelope containing Ex. P6 to the complainant—Again, accused had failed to prove, that on the date when the cheque Ex. P1 was presented for encashment, there was sufficient fund in his bank account for the clearance- The accused failed to rebut the presumptions under Sections 118 and 139 of the Act— Petition dismissed. (Paras 12 to 14)
A.N. Venugopala Gowda, J.—The material facts not in dispute are that the respondent/complainant (for convenience hereinafter referred to as ‘the complainant’) had filed C.C. No. 286 of 2004, in the Court of JMFC, Koppa against the petitioner/accused (for convenience hereinafter referred to as ‘the accused’), under Section 138 of Negotiable Instruments Act, 1881 (for short ‘the Act’), in relation to bounced cheque for Rs.12,00,000, which had been issued by the accused. By a judgment dated 15.2.2007, the accused was convicted and sentenced to pay fine of Rs. 24,00,000 to the complainant. Assailing the said judgment, the accused filed Crl. A. No. 20 of 2007 in the Sessions Court at Chikmagalur. During the pendency of the said appeal, an endeavour having been made to resolve the dispute between the parties, an agreement having been reached, the parties entered into a compromise. The appellant/accused agreed to pay a sum of Rs. 12,00,000, as against the fine amount of Rs. 24,00,000. Out of the agreed amount, the accused paid by cash Rs. 4,00,000, to the complainant and assured to pay the balance amount of Rs. 8,00,000, in installments. Towards payment of the said balance amount, the accused issued four post dated cheques bearing Nos. 0706011, 0706012, 0706013 and 0706014, drawn on Chikmagalur Kodagu Grameena Bank, Agalagandi branch. The complainant presented for encashment, the cheque bearing No. 0706012, dated 12.3.2008, for Rs. 2,50,000, which bears signature of the accused. The bank returned the cheque on 12.3.2008, with an endorsement payment stopped by the drawer’. The complainant issued a notice on 8.4.2008, calling upon the accused to pay the cheque amount within 15 days. Notice sent by RPAD with the description M.N. Srikara. Rao S/o Late Sheshagiri Rao, Agriculturist, R/o Haluthota, Bethadakolalu, Koppa Taluk was returned for the reason, ‘an initial of the addressee differs’. However, notice sent by certificate of posting with the same description, to the same address, was not returned. Since, payment was not made, a private complaint was filed, under Section 138 of the Act, before the JMFC at Koppa. Cognizance was taken. Case was registered and process was issued. The accused denied having received notice from the complainant regarding dishonour of cheque and also the liability to pay the cheque amount. It was inter alia contended that, there being no cause of action, i.e., for not giving and/or serving notice contemplated under Section 138(b) of the Act, the complaint is not maintainable. The complainant examined himself as PW1 and Exs. P1 to P6 was marked. Ex. P1 is the cheque and Ex. Pl(a) is the signature of the accused on the cheque. Ex. P2 is the cheque return endorsement of the Bank. Ex. P3 is copy of the legal notice dated 8.4.2008. Ex. P4 is the RPAD receipt. Ex. P5 is acknowledgment for certificate of posting of the notice Ex. P3. Ex. P6 is another copy of the said notice and Ex. P 6(a) is the returned RPAD envelope. PW1 was not cross-examined. The accused examined himself as DW1.
2. The learned Trial Judge, noticing the admissions of the accused DW1, that he was convicted in C.C. No. 286 of 2004 and was ordered to pay fine/compensation of Rs. 24,00,000 to the complainant; the appeal filed there against; the issuance of cheque Ex. P1 to the complainant and also his liability to pay the amount in terms of the compromise entered into the criminal appeal, held that the cheque/Ex. P1 was issued to the complainant in order to discharge the legal liability. The contention that the demand notice Ex. P3/P6 was not given/served was repelled. The cheque amount having not been paid, the accused was found guilty. Accused was convicted for the offence under Section 138 of the Act and was sentenced to undergo imprisonment for a period of 6 months and pay fine of Rs. 5,000 and in default of payment of fine amount, to undergo simple imprisonment for a period of one month.
3. Assailing the said Judgment, the accused filed Cr
