[2025:RJ-JD:34145]

HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR S.B. Criminal Revision Petition No. 149/2016 Gajendra Kumar Choudhary S/o Bhanwar Lal, T/o Nakora Nagar, Kankroli, Tehsil & District Rajsamand.

----Petitioner Versus Ram Gopal S/o Shri Karan Singh Choudhary R/o Railway Station Kankroli, Tehsil & District Kanroli ----Respondent For Petitioner(s) : Mr. Shravan Vishnoi Ms. Shivangi Pathak For Respondent(s) : None present. HON'BLE MR. JUSTICE FARJAND ALI

Order

Reportable ORDER PRONOUNCED ON ::: 07/08/2025 ORDER RESERVED ON ::: 30/07/2025 BY THE COURT:-

1. The present criminal revision petition has been filed by the petitioner-accused, Gajendra Kumar, under Sections 397 and 401 of the Code of Criminal Procedure, 1973, assailing the judgment dated 05.02.2016 passed by the learned Sessions Judge Rajsamand in Criminal Appeal No.87/2013, whereby the order of acquittal dated 25.06.2013 rendered by the learned Chief Judicial Magistrate, Rajsamand, in Criminal Regular Case No.275/2011 under Section 138 of the Negotiable Instruments Act, 1881, was reversed and the petitioner was convicted of the said offence.

2. The genesis of the litigation lies in a complaint instituted by the respondent-complainant Ram Gopal under Section 138 of the Negotiable Instruments Act, 1881 (“NI Act”), alleging that the petitioner-accused issued a cheque bearing No.085708 dated 16.11.2009 for an amount of ₹75,000/-, drawn on Bank of Baroda, Kankroli Branch, purportedly in discharge of a legally enforceable liability. The said cheque was presented for encashment but was dishonoured on 18.11.2009 with the endorsement “insufficient funds.”

2.1. Pursuant to the dishonour, the complainant issued a statutory demand notice dated 09.12.2009 by registered post, which, according to the record, was received not by the petitioner but by his wife, Smt. Sharda, on 11.12.2009. The complainant thereafter proceeded to initiate prosecution under Section 138 of the NI Act.

2.2. After a comprehensive examination of the evidence on record, including the oral testimony of the complainant and documents such as the dishonoured cheque (Exhibit 1), bank return memo (Exhibit 2), statutory notice (Exhibit 3), postal receipt (Exhibit 4), and acknowledgment card (Exhibit 5), the learned Trial Court reached to a reasoned conclusion that the essential requirement of service of statutory notice upon the accused, as mandated under clause (b) of the proviso to Section

138 of the NI Act, had not been fulfilled.

2.3. The acknowledgment card (Exhibit 5) revealed that the notice was received by the wife of the accused and not by the accused himself or any other legally authorized person. Relying upon the authoritative pronouncement of the Hon’ble Supreme Court in M.D. Thomas v. P.S. Jaleel & Ors. [2011 LCI (CC) 78], the learned Trial Court held that service of notice upon a person who is not qualified under Section 64 CrPC such as the wife of the accused does not amount to valid service in criminal proceedings under the NI Act. In light of this, the learned trial Judge rightly held that the statutory requirement had not been complied with and accordingly acquitted the petitioner.

2.4. Aggrieved by the acquittal, the complainant preferred an appeal before the learned Appellate Court, which, vide the impugned judgment dated 05.02.2016, allowed the appeal and convicted the petitioner under Section 138 of the NI Act. The Appellate Court placed reliance on the presumption under Section 27 of the General Clauses Act, 1897, and concluded that the service of notice was presumed upon proper dispatch to the correct address, notwithstanding the fact that the same had been received by the wife of the accused. Hence the instant revision petition.

3. I have heard the counsel for the petitioner and perused the judgments passed by the Courts below as well as record of the case.

4. At the very outset, this Court is confronted with the question of competence of the learned Sessions Judge to entertain and adjud