Failure to provide evidence of non-receipt of statutory notice weakens a defense in Section 138 cases.

JUDGMENT

This revision is directed against concurrent findings of guilt of the revision petitioner under Section 138 of the Negotiable Instruments Act , 1881 (for short, ‘NI Act’) and consequent passing of orders of conviction and sentence by Special Judicial First Class Magistrate Court (N.I. Act cases), Kozhikode, (for short ‘the trial court’) in S.T.No.33/2018, and 1st Additional Court of Sessions, Kozhikode, (for short, ‘the appellate court’) in Criminal Appeal No.461/2019. The revision petitioner was convicted and sentenced by the trial court to pay a fine of Rs.92,000/- (Rupees Ninety Two Thousand only) and to undergo simple imprisonment for three months in default of payment of the fine amount. The fine amount was also directed to be paid as compensation to the complainant under Section 357 (1) (b) of the Code of Criminal Procedure (for short, ‘Cr.P.C’). When the judgment of the trial court was assailed in appeal, the Appellate Court has confirmed the sentence.

2. Learned counsel for the petitioner has contended that statutory notice as contemplated by Clause (b) of proviso to section 138 was not served on the revision petitioner. According to him, the contention was taken in the examination held under Section 313(1) Cr.P.C.

3. According to the revision petitioner, notice in the prosecution was not served on him, he being abroad at the relevant time. But he has no case that notice was not issued in an address wherein he had never stayed. The notice was taken to serve in the address furnished and was returned with endorsement ‘intimated, returned to sender’. The contention taken during examination under Section 313 Cr.P.C was that he was not residing in the address in which lawyer notice was issued to him and therefore, reply notice was not sent. Therefore, there was no specific case for the revision petitioner regarding non-service of notice. He also failed to adduce evidence to establish that he had no residence in the place where notice taken for service and intimated.

4. Therefore, revision is only to fail and is dismissed in limine. Fine amount payable as per the judgment assailed being Rs.92,000/-, this Court is inclined to grant three month’s time for deposit of the same before the trial court. The revision petitioner shall pay the fine amount on or before 10.06.2022. The trial court shall not proceed with the execution of sentence till 10.06.2022. Revision petitioner has no right to seek for further extension of time.