Service of notice under Section 138 of the Negotiable Instruments Act is valid if delivered to a family member, establishing liability unless rebutted.

JUDGMENT :

Susmita Phukan Khaund, J.

1. This appeal is directed against the judgment and order dated 03.11.2016 passed by the learned Chief Judicial Magistrate, Chirang in Case No. NICR 4 of 2015 passing an order of acquittal. Accused - respondent No. 2 herein was acquitted from the charges u/s 138 of the Negotiable Instrument Act, 1881 (N.I. Act for short).

2. The genesis of the case was that an undertaking was executed on 10.06.2013 by the respondent No. 2 who borrowed an amount of Rs. 2,50,000/- from the appellant. An agreement was entered into by both the parties and the respondent No. 2 agreed to return the borrowed money within a period of 2 months but he failed to repay the loan in time. The appellant repeatedly requested the respondent No. 2 to repay the debt and finally the respondent No. 2 issued two Account Payee Cheques being Cheque No. 034986 for Rs. 2 lacs from his Account No. 32444819290 of the State Bank of India, BRPL Complex Branch, Dhaligaon and Cheque No. 841618 for Rs. 50,000/- from his Account No. 1201000100139169 of Punjab National Bank, Bongaigoan Branch in discharge of his debt of Rs. 2,50,000/-.

3. The appellant filed a complaint petition of dishonour of cheques and on finding a prima facie case, cognizance was taken by trial Court u/s 138 of the N.I. Act. Process was also issued against the respondent No. 2. On appearance of the respondent No. 2 offence was explained u/s 138 of the N.I. Act and the respondent pleaded not guilty and claimed to be tried.

4. To connect the respondent to the crime the appellant examined 6 witnesses and the respondent No. 2 cross-examined the witnesses to refute the charges. After closure of prosecution evidence, the statement of the respondent No. 2 was recorded u/s 313 of the Code of Criminal Procedure (Cr.PC for short). The tone and tenor of his answers to the questions u/s 313 Cr.PC depicts a plea of total denial. The respondent No. 2 also did not adduce any evidence in defence.

5. The learned trial Court delineated the following points to decide the case:-

"5(i) Whether this court has territorial jurisdiction to try the case or not.

5(ii) Whether the accused had received the legal notice duly served upon him by the complainant and appeared before the court or not.

5(iii) Whether the accused has legally enforceable liability or debt to complainant.

5(iv) Whether the documents exhibited by the accused is admissible in the eye of law or not.

5(v) Whether the statement of the accused recorded under section 313 of Cr.PC has evidential value or not.

5(vi) Whether the complainant is entitled to get the cheque amount in double as compensation or not.

5(vii) Whether the accused has committed offence punishable under section 138 of NI Act, 1881 or not if so if he is liable for punishment under that provision of law."

6. It is contended by the learned counsel for the appellant that the contention of the respondent No. 2 was that he did not receive pleader's notice and the learned trial Court had erroneously acquitted the respondent No. 2 on the ground that the respondent did not receive the pleader's notice. However, the answers of the respondent No. 2 u/s 313 Cr.PC clearly depicts that he admitted that he did not return the money, which he had received from the appellant. It is submitted that the notice was received by the respondent's brother. The Ext.-6 clearly reveals the delivery of the notice on 05.03.2015 at Dhaligaon.

7. The learned trial Court while deciding the case observed in his judgment at para-16 that:-

"However, it was admitted by the Advocate for the accused that the notice was received by the elder brother of the accused. The receiving of the notice by a male member did not vitiate the proceeding of the N.I. case. Mere denial of the accused of receiving notice the accused did not give evidence to that effect......"

8. The learned trial Court held that:-

"........................this court has territorial jurisdiction to try the present case because the cheque in question Ext.