The service of the statutory notice is a necessary pre-condition for filing a complaint under Section 138 of the Negotiable Instruments Act, and the omission of the complainant in not prosecuting the complaint properly could not be ignored.

ORDER :

1. This appeal arises out of the judgment and order dated 5.8.2005 pronounced by the High Court of Karnataka in Criminal Appeal No. 774 of 2000 that was filed by the respondent challenging the acquittal of the appellant by the Trial Court vide judgment dated 31.5.2000/1.6.2000 passed in complaint case that was lodged by the respondent under Section 138 of the Negotiable Instruments Act, 1881 (hereinafter referred to as the 'Act')

2. The aforesaid complaint under Section 138 of the Act was filed alleging that the appellant herein was to pay a sum of Rs. 4,35,000/- to the respondent in terms of the agreement dated 10.7.1996 executed between the parties and towards that payment, a cheque of Rs. 1,00,000/-was given by the appellant to the respondent and on its presentation, the same was returned with an endorsement “stoppage of payment”. In the complaint, it was also alleged that this amount was not paid even after the issuance of statutory notice and because of that the complaint was filed. The Trial Court while acquitting the appellant supported the said acquittal with the reasons that the statutory notice allegedly served upon the appellant was not even placed on record in spite of the fact that issuance or receipt of such a notice was specifically denied by the appellant. Not only this, even though some other documents were filed by the respondent along with complaint, no effort was made to prove any of those documents. On that basis, the Trial Court held that the appellant was not able to establish the ingredients of offence under Section 138 of the Act.

3. The High Court has accepted the aforesaid position, which is reflected from the reading of the impugned judgment itself, and relevant portion is reproduced herein:

“On a perusal of the records, I find that the complaint has not been properly drafted and proper attention has not been given to place before the Court requisite evidence regarding ingredients of offence. It is seen that though the complainant has produced many documents, they have not been admitted in evidence and no effort had been made by the learned counsel for the petitioner appearing in the Trial Court to get those documents marked in evidence. Even the examination of the former advocate for the respondent to prove the service of statutory notice was not shown the reply sent by him.”

4. In spite of the aforesaid admitted position, the High Court has allowed the appeal thereby setting aside the acquittal order passed by the Trial Court and remanded the matter back to the Trial Court with the direction to permit the respondent to adduce further evidence giving full opportunity to the accused in accordance with law and decide the matter afresh.

5. We are unable to agree with this approach of the High Court, in the facts of this case, which is inappropriate in law. The service of the statutory notice calling upon the drawer of the cheque (after it has been disowned) to pay the amount of cheque is a necessary pre-condition for filing of the complaint under Section 138 of the Act. Therefore, it was incumbent upon the respondent to produce the said statutory notice on record to prove the same as well. In this case, this document was not even filed by the respondent along with the complaint, and the question of proving the same was, therefore, a far cry. In a case like this, we fail to understand as to how the aforesaid omission on the part of the respondent in not prosecuting the complaint properly could be ignored and another chance could have been given to the respondent to prove the case by producing further evidence. It clearly amount to giving an opportunity to the respondent to fill up the lacuna.

6. The learned counsel for the respondent has submitted that in order to advance the cause of justice, such an approach is permissible and for this purpose he has relied upon the judgment of this Court in Zahira Habibullah Sheikh & Anr. vs State Of Gujarat & Ors. [(2004) 4 SCC 158]. We are afraid that the ratio