Sri T. Ramappa vs Sri S. Kiran

N. Ananda, J.—The learned trial Judge has acquitted respondent (hereinafter referred as ''accused'') of an offence punishable u/s 138 of the Negotiable Instruments Act, 1881 (for short, ''the Act''), inter alia holding that legal notice caused by appellant (hereinafter referred as complainant'') u/s 138(b) of the Act was not served on accused and that accused had issued cheque in question to complainant as a security for certain transaction between complainant and accused. I have heard learned counsel for parties.

It is not in dispute that complainant had sent legal notice to the correct address of accused under registered post acknowledgment due.

The evidence of PW4-Muralikrishna, the then jurisdictional postman would clinch this issue. PW4 has deposed; notice sent by complainant through registered post was sent to the correct address of accused; PW4 had visited the house of accused on 7 consecutive days, however accused was absent, the family members of accused were present in the house; therefore, PW4 returned envelop sent by registered post acknowledgment due to the addressor with an endorsement ''addressee was not found in address after a period of 7 days.

In a decision reported in Indo Automobiles Vs. Jai Durga Enterprises and Others, , the Supreme Court has held:--

Admittedly, notice u/s 138-B of the Negotiable Instruments Act was sent to the respondents through registered post and under a certificate of posting to the correct address of the respondents. The High Court had quashed proceedings on the ground that although notice through registered post and also under certificate of posting were sent by the appellant complainant to the respondents but because of the endorsement of the postal peon, the service could not be said to have been effected. In our view, the High Court was not justified in holding that service of notice could not be found to be valid.

In K. Bhaskaran v. Sankaran Vaidhyan Balan, it has been held that the context of section 138-B of the Negotiable Instruments Act invites a liberal interpretation favouring the person who has the statutory obligation to give notice under the Act because he must be presumed to be the loser in the transaction and provision itself has been made in his interest and if a strict interpretation is asked for that would give a handle to the trickster cheque drawer. It is also well settled that once notices has been sent by registered post with acknowledgment due to a correct address, it must be presumed that the service has been made effective. We do not find from the endorsement of the postal peon that the postal peon was examined at all.

The finding of learned trial Judge that accused had issued cheque to complainant as a security in relation to the transaction which he had with complainant.

As could be seen from the evidence of complainant, there is no suggestion from the accused that he had issued cheque as security. From the tenor of cross-examination of complainant by learned counsel for accused, we find that complainant has denied the issuance of cheque The accused has not tendered evidence to show that there was transaction between complainant and accused and accused had issued cheque in question as security. Thus, findings recorded by the learned trial Judge are not based on proper appreciation of evidence. Therefore, the matter requires reconsideration. In the result, I pass the following:--

ORDER

The appeal is accepted. The impugned judgment is set aside. The matter is remanded to the learned trial Judge for reconsideration in the light of observations made herein and in accordance with law. The parties are at liberty to adduce further evidence. The learned trial Judge shall decide the case within a period of six months from the date of receipt of a copy of this judgment. Office is directed to send back, records along with a copy of this judgment to trial court.