Service of notice under Section 138 must be to the accused directly; notice served to a relative without proof of the accused's knowledge is insufficient for conviction.

ORDER :

1. The short point raised in this revision is that the dictum laid down by this Court in Saju v. Shalimar Hardwares, Kattanam [2025 KHC OnLine 719] requires reconsideration because three decisions of the Apex Court (Vinod Shivappa v. Nanda Belliappa [2006 KHC 840], C C Alavi Haji v. Palapetty Muhammed and Another [2007 (2) KHC 932] and M/s Indo Automobiles v. M/s. Jai Durga Enterprises and Others [2008 (3) KHC 815]) and two decisions of this Court (Komala Unnikrishnan v. Manoj Kumar K. [2023 KHC 783] and Sarath C v. Muthoot Leasing and Finance Ltd. [2024 KHC 7092]) were not considered by this Court while delivering the above judgment.

2. I will first narrate the facts in this case: The revision petitioner is the accused in ST No.114/2017 on the files of the Judicial First Class Magistrate Court -II, Alathur. The above case was filed by the 2^nd respondent herein alleging offence punishable under Section 138 of the Negotiable Instruments Act, 1881 (for short “NI Act”). (Hereinafter, the revision petitioner is mentioned as the accused and the 2^nd respondent is mentioned as the complainant).

3. The case of the complainant is that, the accused borrowed an amount of Rs. 3,00,000/- from the complainant, and to discharge the said debt, the accused issued a cheque bearing No.479097 of Catholic Syrian Bank Ltd., Perumbavoor Branch. When the cheque was presented by the complainant before the State Bank of India, Nenmara Branch, the same was dishonoured, stating that there is no sufficient fund in the account maintained by the accused. Though the complainant issued a lawyer notice, the accused did not pay the amount.Hence, the complaint was filed.

4. To substantiate the case, the complainant herself was examined as PW1. One witness was also examined on the side of the complainant. Ext.P1 to P6 are the exhibits marked on the side of the complainant. One witness was examined on the side of the defence as DW1, and Exhibit D1 is the exhibit marked on the side of the defence. After going through the evidence and documents, the trial court found that the accused committed the offence under Section 138 of the NI Act, and he was sentenced to undergo simple imprisonment for a period of six months and to pay a fine of Rs. 3,00,000/-. In default of payment of the fine amount, the accused is directed to undergo simple imprisonment for a further period of six months. The fine amount, if realised, is directed to be paid to the complainant as compensation under Section 357(1)(b) of Cr.PC. Aggrieved by the conviction and sentence, the accused filed an appeal before the Sessions Court, Palakkad. The Third Additional District and Sessions Judge considered the appeal. After going through the evidence and documents, the Appellate Court confirmed the conviction imposed on the accused under 138 of the NI Act. The sentence imposed on the accused is also confirmed. Aggrieved by the conviction and sentence imposed by the Trial Court, which is confirmed by the Appellate Court, this revision is filed.

5. Heard Adv. Sri. P K Mohanan, who appeared for the accused and also Adv. Sri. V A Johnson for the complainant.

6. The counsel for the accused relied on the judgment of this Court in Saju’s case (supra) and submitted that, in this case, the statutory notice under Section 138(b) of the NI Act is not served on the accused but served to another person. Therefore, the counsel submitted that the accused is entitled acquittal. Adv. Sri. Johnson, who appeared for the complainant, submitted that the dictum laid down by this Court in Saju’s case (supra) requires reconsideration.

7. Adv. Johnson submitted that, the Apex court inC.C.Alavi Haji's case (supra), M/s Indo Automobiles case (supra), and in Vinod Shivappa's case (supra) considered the principle "giving notice" as per Section 138(b) of the Negotiable Instruments Act. The counsel also relied on the judgment of this Court in Sarath's case (supra) and Komala Unnikrishnan's case (supra) and submitted that the principles l