JUDGMENT :

C.P. Case No. 1392 of 2012 was instituted at the instance of OP No.2 against the petitioner for committing offence under section 138 of the Negotiable Instruments Act, 1881.

2. In Trial Case No. 1361 of 2014 which commenced on the basis of C.P Case No.1392 of 2012, the petitioner has been convicted and sentenced to imprisonment of six months with a direction to pay compensation to the tune of Rs.1,20,000/-.

3. The case set up by OP No.2 was that he being an agent of the authorized Coal Agency/DO holder provided coal to the petitioner for a consideration of Rs.81,959/- in respect of which a cheque bearing no. 907 drawn on Maithan Branch, Bank of India was issued by him. However, the said cheque when presented at Kumardhubi Branch of State Bank of India for encashment for the second time on 18th May 2012 was returned unpaid on account of “insufficient fund”.

4. OP No.2 has asserted that he issued legal notice dated 1st June 2012 requiring the accused to pay the cheque amount within 15 days. However, instead of paying the cheque amount the accused came in his office at 6:00 PM on 17th June 2012 and threatened him. Constrained, the informant instituted C.P Case No.1392 of 2012.

5. During the trial, the informant examined himself as PW2 and produced Rahul Kumar Yadav another witness to support his case.

6. As noticed above, the petitioner has been convicted and sentenced to imprisonment of six months and to pay compensation cost of Rs.1,20,000/- under section 138 of the Negotiable Instruments Act, 1881.

7. The appellate Court dismissed the appeal preferred against the judgment of conviction in Trial Case No. 1361 of 2014, however, interfered with the order of punishment by reducing the same to imprisonment of three months. The appellate Court further ordered that the award of compensation shall be reduced to Rs. One Lakh under section 357(3) of the Code of Criminal Procedure.

8. Mr. H.K. Shikarwar, the learned counsel for the petitioner raises a neat question in law: whether without establishing service of notice upon the accused a prosecution under section 138 of the Negotiable Instruments Act, 1881 can be conducted.

9. The offence under section 138 of the Negotiable Instruments Act, 1881 requires the complainant to establish (i) issuance of cheque in discharge of any debt or other liability, in whole or in part (ii) return of cheque unpaid either for insufficient fund or any other reason (iii) notice providing clear 15 days' time for repaying the debt amount, and (iv) proof of service of notice upon the accused.

10. On admitted facts, there is no proof of service of notice dated 1st June 2012 upon the petitioner. Both Courts have taken note of the aforesaid circumstance that no proof as regards service of legal notice dated 1st June 2012 has been produced by the complainant. However, Mr. Sanjay Prasad, the learned counsel for OP No.2 would urge that the legal notice dated 1st June 2012 was tendered in evidence vide Exhibit-1/3 and the accused never raised any grievance as regards non-service of the said legal notice upon him and while so an inference on valid service of notice upon the petitioner must be drawn.

11. Mr. Sanjay Prasad, the learned counsel for OP No.2 refers to paragraph no.17 of the judgment of Hon'ble Supreme Court in “C.C. Alavi Haji v. Palapetty Muhammed & Another” (2007) 6 SCC 555 to lay support to the aforesaid submission made on behalf of OP No.2.

12. In “C.C. Alavi Haji”, the Hon'ble Supreme Court has held as under :

“17. It is also to be borne in mind that the requirement of giving of notice is a clear departure from the rule of Criminal Law, where there is no stipulation of giving of a notice before filing a complaint. Any drawer who claims that he did not receive the notice sent by post, can, within 15 days of receipt of summons from the court in respect of the complaint under Section 138 of the Act, make payment of the cheque amount and submit to the court that he had made payment within 15 days of receipt