The court emphasized the importance of valid service of legal notice and the necessity for the complaint to be filed after the expiry of 15 days from the date of service of notice, as prescribed under Section 138 of the Negotiable Instruments Act.

JUDGMENT :

Heard Mrs. Ritu Kumar, learned counsel for the petitioner.

2. Heard Mrs. Vandana Bharti, learned A.P.P. appearing on behalf of the opposite party- State.

3. Heard Mr. Ashok Kr. Sinha, learned counsel appearing on behalf of the opposite party no. 2.

4. This criminal revision has been directed against the judgment dated 02.08.2011 passed by learned Sessions Judge, East Singhbhum, Jamshedpur in Criminal Appeal No. 196 of 2009, whereby the learned lower appellate court has confirmed the order and sentence passed by the learned Judicial Magistrate dated 30.06.2009.

The learned Judicial Magistrate, 1st Class, Jamshedpur vide judgment dated 30.06.2009 passed in C/1 Case No. 1464 of 2007, T.R. No. 312 of 2009, has been pleased to hold the petitioner guilty for the offence punishable under Section 138 of the Negotiable Instruments Act and further sentenced the petitioner to undergo rigorous imprisonment for one year coupled with compensation of entire cheque amount of Rs. 80,000/- towards compensation of the cheque amount and litigation cost in terms of Section 357(3) of the Code of Criminal Procedure.

Submission on behalf of the petitioner

5. The learned counsel for the petitioner submits that the impugned judgment of conviction of the petitioner as well as the sentence for offence under Section 138 of Negotiable Instruments Act is ex-facie perverse and cannot be sustained in the eyes of law. She has submitted that there is no finding recorded by the learned courts below regarding service of legal notice in connection with bouncing of the cheque which is a condition precedent for filing of case under Section 138 of Negotiable Instruments Act. She has further stated that even the complainant remained totally silent on the point of service of notice to the petitioner.

6. The learned counsel for the petitioner further submitted that the legal notice dated 24.07.2007 was said to be sent under certificate of posting and not under registered cover so as to even draw any presumption regarding service of notice. She also submitted that even if 24.07.2007 is take to be the date of dispatch of notice and the deemed service is taken, then at best the deemed service can be taken upon expiry of 30 days from 24.07.2007 and upon expiry of 15 days thereafter, the case could have been filed. In the present case, even if the deemed service is taken, then the notice at best could be said to have been served on 24.08.2007 and the case has been filed on 06.09.2007 which is prior to expiry of 15 days from the deemed service of notice. She submits that this is without prejudice to her argument that there is no evidence, rather no averment in connection with the service of legal notice dated 24.07.2007. The learned counsel has also submitted that in the impugned judgments also, there is no finding regarding service of notice/deemed service of notice to the petitioner. The learned counsel for the petitioner has also submitted that on this short point the matter can be disposed of.

7. The learned counsel submits that apart from aforesaid, she has other points which may not be required to be argued considering the aforesaid technicality of the provisions of Section 138 of Negotiable Instruments Act, 1881 which is enough to set-aside the conviction of the petitioner.

Submission on behalf of the opposite party No. 2 and State

8. The learned counsel appearing on behalf of the opposite party no. 2, on the other hand, has been given an opportunity to indicate to this Court regarding any finding of the learned courts below on the point of service of legal notice said to have been sent on 24.07.2007. After going through the impugned judgments, the learned counsel for the opposite party no. 2 fairly submits that the learned courts below have not recorded any finding regarding service of legal notice dated 24.07.2007 and it is not in dispute that the legal notice dated 24.07.2007 was dispatched under certificate of posting and not under registered cover.

9. The learned c