Proper service of notice is crucial under section 138 of the Negotiable Instruments Act, and discrepancies in address must be closely examined before concluding non-service.

JUDGMENT

The appellant herein challenges the judgment dated

31.12.2007 in S.T.No.291 of 2004 for offence punishable under section 138 of the Negotiable Instruments Act .

2. Appellant herein laid a complaint alleging that the accused had executed and delivered a cheque for a sum of Rs.97,000/- towards the discharge of a legally enforceable debt, which, on presentation was returned dishonoured. After issuing statutory notice, complaint was laid. The accused contested the proceeding. Court below, after elaborate consideration of the available materials, dismissed the complaint and acquitted the accused.

3. The main ground on which the accused was acquitted was that there was no proper service of notice. It appears that in Ext.P5 lawyer notice, the address of the accused was shown as “M.K.Siyad, S/o.Kunhumuhammad, Manaya Parambil House, Door No.43/2000, SRM Road, Pachalam P O, Cochin-18. The notice was returned unserved with endorsement “not known”. It appears that there are some material to show that the actual door number was “43/2300”. The contention of the accused was that in the complaint, address was correctly shown as Door No.43/2000 and he was always available in the above address. The contention of the complainant was that accused had willfully evaded from accepting the notice. PW2, the Manager of the District Co-operative Bank, who was summoned, produced the copy of the passport of the accused, the photocopy of the account opening form and photocopy of the cheque return register, which showed that the address of the accused was the same as that in the complaint, except that there was no door number. Evidently, even without the door number, the remaining part of the address of the accused in the complaint was the correct address. The crucial question is whether, it ought to have been returned on the reasoning that accused was not known. However, it is pertinent to note that the full address except the door number was correct. Hence, the possibility of the accused having got the envelope returned cannot be ruled out. However, it is also to be noted that there are certain entries dated 8/12, 9/12, 10/12 on the postal cover which have not been explained. Having regard to the fact that address of the accused herein, except for the door number, appears to be completely correct, I feel that the question of fraudulent return ought to have been considered. Examination of the postman would have also clarified the question whether it was returned after intimation to the accused or not. For that limited purpose, the learned counsel for the complainant sought for a remand.

4. There is yet another aspect to the above contention.

The learned counsel contended that the court below did not consider the object of section 114 of Evidence Act and section 27 of the General Clauses Act. The learned counsel also relied on the decision in D.Vinod Shivappa v. Nanda Balliappa (2006(6)

SCC 456) where it was held as follows “If a notice is issued and served upon the drawer of the cheque, no controversy arises. Similarly if the notice is refused by the addressee, it may be presumed to have been served. This is also not disputed. This leaves us that the third situation where the notice could not be served on the addressee for one or the other reason, such as his non availability at the time of delivery, or premises remaining locked on account of his having gone elsewhere etc. If in each such case, the law is understood to mean that there has been no service of notice, it would completely defeat the very purpose of the Act”.

In the light of the above, I feel that the matter requires a reconsideration by the court below in the light of above aspect also.

In the result, the appeal is allowed. The matter is remitted to the court below to enable the complainant herein, if he so chooses, to summon any of the postal authorities to explain regarding the entries in Ext.P5 notice. The Court shall also consider whether notice was improperly returned. Since the resp