Proper service of notice under Section 138 of the Negotiable Instruments Act requires notice to be served directly to the drawer of the cheque, not to a third party.

JUDGMENT

1. This is an appeal arises out of judgment of acquittal dated 28.06.2019, passed by learned Chief Judicial Magistrate, North Tripura, Dharmanagar in connection with Case No. CR(NI) 20/2012.

2. Briefly stated, that the complainant-appellant [here-in-after referred to as the complainant] filed a complaint against the respondent under Section 138 of the N.I. Act, 1881 [here-in-after referred to as the NI Act] in the court of the Sub-Divisional Judicial Magistratre, Dharmanagar, North Tripura which was registered as CR (NI) No.20 of 2012. The main allegation contained in the said complaint was that the respondent borrowed an amount of Rs.2,50,000/- from the complainant on 26.04.2010 with a condition to refund the same within a period of three months. But, the respondent did not refund the said money to the complainant within time. The respondent ultimately issued a cheque on 26.07.2011 in the name of the complainant. When the said cheque was deposited for encashment of the bank account on 23.12.2011, it was dishonoured with the remark that the account was closed. Thereafter, the complainant served notice dated 03.01.2012 upon the respondent for payment of the said amount, but, it did not yield any result.

3. Having heard the learned counsels appearing for the parties, learned Chief Judicial Magistrate, North Tripura, Dharmanagar, had acquitted the respondent vide judgment dated 28.06.2019 with the finding that the complainant had failed to prove his case beyond all reasonable doubt.

4. Being aggrieved by and dissatisfied with the said judgment of acquittal, dated 28.06.2019, the complainant has filed the instant appeal before this court.

5. I have heard Mr. S. M. Chakraborty, learned Sr. counsel assisted by Mrs. P. Chakraborty, learned counsel appearing for the complainant and Mr. S. Lodh, learned counsel appearing for the respondent.

6. I have perused the judgment passed by the learned Chief Judicial Magistrate. Learned Chief Judicial Magistrate had formulated the following point for determination:

'Whether the accused issued one Cheque bearing No.CAO 00/137 317417 dt. 26.07.2011 to the complainant for an amount of Rs.2,50,000/- in discharge of his liabilities which was subsequently dishonoured for closure of the bank account of the accused, as the complainant presented the same for encashment and that after receipt of appropriate legal notice, the accused failed to repay the amount within the stipulated period and that he thereby committed an offence punishable under Section 138 of the Negotiable Instruments Act?'

7. While dismissing the complaint, learned Chief Judicial Magistrate held that the complainant had failed to prove that he had any enforceable debt to the respondent. Learned Magistrate further held that the statutory notice [Exbt.4] as contemplated under Section 138 of NI Act was not properly served upon the respondent.

8. Assailing the aforesaid findings recorded by learned CJM, Mr. Chakraborty, learned Sr. counsel, at the very outset, has taken up the point whether the notice was properly served upon the respondent or not. According to learned Sr. counsel, in the instant case, since notice was served upon the wife of respondent, that would be deemed to be effected upon the respondent himself who was the drawer of the cheque. In support of his submission, Mr. Chakraborty, learned Sr. counsel has invited my attention to Section 27 of the GENERAL CLAUSES ACT , which reads as under:-

'27. Meaning of service by post-- Where any [Central Act] or Regulation made after the commencement of this Act authorizes or requires any document to be served by post, whether the expres