Service of statutory notice under Section 138(b) of the Negotiable Instruments Act must be directed to the drawer of the cheque, not a relative; failure to comply with this requirement invalidates prosecution.

ORDER :

P.V. KUNHIKRISHNAN, J.

1. The short point raised by the revision petitioner in this case is that, if statutory notice under Section 138 (b) of the Negotiable Instruments Act, 1881 (hereinafter referred to as, the Act) is issued to a person, and the relative of that person accepts the same, whether the same can be treated as service of notice.

2. The revision petitioner is an accused in C.C.No.325 of 2019 on the file of the Judicial First Class Magistrate Court-II, Kayamkulam. It was a prosecution initiated against the petitioner under Section 138 of the Act. The first respondent is the complainant. (Hereinafter, the petitioner and the first respondent are mentioned as the accused and the complainant, respectively.) 3. The case of the complainant is as follows:

The complainant is a proprietary concern in the name and style 'M/s Shalimar Hardwares' at Kattanam. The complainant concern is engaged in the business of construction materials. Sri. Mohammedkunju, Salimar House, Elippakkulam Muri, Vallikunnam Village represent the complainant concern. The accused purchased some building materials from the complainant concern on 02.03.2019. The balance amount to be paid by the accused to the complainant concern in the above purchase was Rs. 92,500/-. The accused, in the discharge of the above legally enforceable liability, executed and issued a cheque bearing No. 971851 drawn on the State Bank of India Pallickal Branch, noting the date as 02.04.2019 and stating the amount as Rs. 92,500/- in favour of the complainant. As per the assurance given by the accused, the complainant presented the cheque before the State Bank of India, Pallickal Branch. Whereas, the cheque was returned unpaid on the reason 'funds insufficient’ with a memo dated 03.04.2019. Thereafter, the complainant issued a legal notice on 27.04.2019 against the accused.

3. The accused received the legal notice on 30.04.2019. But, he did not repay the amount covered in the cheque. Thus, the accused is alleged to have committed the offence punishable under Section 138 of the Act.

4. To substantiate the case, two witnesses were examined on the side of the complainant, and Exts.P1 to P5 documents were marked. Ext.X1 to X4 were also marked. After going through the evidence and documents, the trial court found that the accused committed the offence under Section 138 of the Act and he was convicted and sentenced to undergo simple imprisonment for three months and to pay an amount of Rs.92,500/- as compensation to the complainant under Section 357(3) of the Code of Criminal Procedure with a default clause of simple imprisonment for one month for nonpayment. Aggrieved by the conviction and sentence, the accused filed an appeal. The appeal was considered by the Additional Sessions Judge-I, Mavelikkara. The Sessions Judge confirmed the conviction but reduced the sentence to imprisonment for one month. The compensation awarded was also confirmed. Hence, this revision.

5. Heard Advocate Manjusha who appeared for the accused and the learned Public Prosecutor. Even though the notice is issued, there is no appearance for the complainant.

6. Advocate Manjusha, who appeared for the accused, submitted that a reading of the evidence of PW1 will show that the notice was not received by the accused. PW1 admitted in his evidence that the notice was served to a relative of the accused. There is no case to the complainant that the accused was aware of the receipt of notice by his relative, is the submission of Advocate Manjusha. In such circumstances, the prosecution is unsustainable because there is no statutory notice served on the accused is the sum and substance of the argument of Advocate Manjusha.

7. This Court consider