Karnataka High Court
Mr. Umraz Khan vs Mr. A. Jameel Ahmed S/O Late S.K. Ameer ... on 13 March, 2006
Equivalent citations: IV(2007)BC213, ILR2007KAR311, 2006(6)KARLJ154
Author: K. Sreedhar Rao
Bench: K. Sreedhar Rao
JUDGMENT K. Sreedhar Rao, J.
1. The appellant-complainant prosecuted the respondent-accused for an offence under Section 138 N.I. Act. The fact of issuance of cheque EX.P-1 and its dishonour is validly proved by the complainant. A copy of the registered notice issued to the accused is marked at Ex.p-3. Ex. P-4 is the postal acknowledgement. Ex.P-5 is the postal receipt. The complainant has examined himself. The accused has admitted issuance of cheque but, disputes the issuance of notice as required under Section 138 N.I. Act. The trial court convicted the accused. The sessions judge in appeal acquitted the accused, on the ground that the registered notice issued is received by the family member as per the acknowledgement. Therefore, there is no valid service of notice on the accused.
2. The Supreme Court in the case of V. Raja Kumari v. P. Subbarama Naidu and Anr. reported in AIR 2004 SCC 6344, has observed in Para 14 that:
14. No doubt Section 138 of the Act does not require that the notice should be given only by 'post', Nonetheless the principle incorporated in Section 27 (quoted above) can profitably be imported in a case where the sender has despatched the notice by post with the correct address written on it. Then it can be deemed to have been served on the sendee unless he proves that it was not really served and that he was not responsible for such non-service. Any other interpretation can lead to a very tenuous position as the drawer of the cheque who is liable to pay the amount would resort to the strategy of subterfuge by successfully avoiding the notice.
3. In the said decision, the Supreme Court has held that" once there is proof of posting of notice to correct address, it is deemed to have been served. In the instant, case, the facts stand on a better footing. A family member of the accused has received the notice. The accused has not lead in any contra evidence to prove that he has not received any notice through his family member. In that view, the judgment of acquittal is bad in law.
4. Appeal is allowed. The accused is convicted for an offence under Section 138 N.I. Act. The accused is imposed a fine of Rs. 1,00,000/- in default, to suffer S.I. for a. period of one year, out of the fine amount, Rs. 95,000/- shall be payable to the complainant. The balance to be appropriated by the State towards prosecution expenses.