Proper service of statutory notice under Section 138 of the N.I. Act is crucial for prosecution. Lack of evidence for improper service does not invalidate the complaint.

ORDER :

JOHNSON JOHN, J.

The revision petitioner is the accused in a prosecution under Section 138 of the Negotiable Instruments Act, 1881 (‘N.I. Act’ for short).

2. The trial court convicted and sentenced the accused to undergo simple imprisonment for two months and to pay a fine of Rs.5,00,000/- and in default of payment of fine, to undergo simple imprisonment for six months. It is also ordered that fine amount, if realised, shall be paid as compensation to the complainant. The appellate court, as per judgment dated 27.2.2021 in Crl. Appeal No. 409 of 2019, modified the sentence to pay a fine of Rs.5,00,000/- and in default of payment of fine, to undergo simple imprisonment for six months and also to release the fine amount, if realised, as compensation to the complainant.

3. The main contention of the revision petitioner is that the finding of the trial court and the appellate court regarding issuance of statutory notice as contemplated under Section 138(b) of the N.I Act by the complainant is based on no evidence and therefore, he sought for interference of this Court in revision.

4. Heard Sri. Sheji P. Abraham, the learned counsel for the revision petitioner, Sri. N.K. Santha Kumar, the learned counsel for the first respondent and Smt. Maya M.N., the learned Public Prosecutor for the second respondent.

5. As per the complaint, the accused and the complainant were colleagues for a long period in the military service and after retirement, the accused issued Exhibits P1 and P9 cheques to the complainant towards payment of the amount due to the complainant in connection with a chitty transaction consequent to a complaint lodged before the Station House Officer, Sulthan Bathery Police Station by the complainant against the accused. According to the complainant, the matter was settled and accordingly, the accused issued the cheques in discharge of the amount due to the complainant in connection with the chitty transaction.

6. It is the case of the complainant that after the dishonour of the cheques, registered lawyer notice was issued simultaneously in the residential address and in the address of the accused at his place of employment. Exhibit P4 is the copy of the statutory notice issued regarding the dishonour of Exhibit P2 cheque and the said notice dated 04.10.2016 shows that the same is issued simultaneously to the residential address and the office address of the accused. Exhibit P5 is the postal receipt for issuing Exhibit P4 notice in the residential address and Exhibit P6 is the postal receipt for issuing Exhibit P4 notice in the official address of the accused. Exhibit P7 is the postal acknowledgment card signed by one Sheeba K.K for receipt of Exhibit P4 notice as authorised person in the residential address. Exhibit P8 is the track consignment to show that the postal article as per Exhibit P6 bearing No.RL 734093345 IN is delivered to the addressee.

7. Exhibit P11 is the office copy of the statutory notice issued to the accused in connection with the dishonour of Exhibit P9 cheque and it clearly shows that copies were marked in the official address of the accused also. Exhibit P12 is the postal receipt for issuing Exhibit P11 in the residential address of the accused and Exhibit P13 is the postal receipt for issuing Exhibit P11 in the official address of the accused. Exhibit P14 cover shows that the notice issued in the residential address of the accused is re-directed to his place of work and subsequently returned to the sender as undelivered. Exhibit P15 is the postal track record to show that the postal consignment as per Exhibit P13 receipt bearing No. RL 738115466 IN was delivered to the addressee.

8. The learned counsel for the revision petitioner cited the decision of this Court in Noorudheen v. State of Kerala [2025 (6) KHC 36] and argued that in a case where the statutory notice is not served on the accused but served to another person, it is for the complainant to adduce evidence to show that the accused was aware