Case Note & Summary
The appellant, M/s. Lloyds Metals & Engineers Ltd., filed a criminal appeal against the judgment dated 31st March 1998 passed by the Judicial Magistrate, First Class, Pune, in S.C.C. No.181 of 1997, whereby the respondent No.1, Y.Y. Kelkar, was acquitted of the offence punishable under Section 138 of the Negotiable Instruments Act, 1881. The appellant/complainant alleged that the respondent No.1 had issued two cheques of Rs.29 lakhs each dated 15th September 1996 towards payment for goods purchased. The cheques were dishonoured due to insufficient funds. The appellant claimed to have issued a statutory notice which was sent by registered post and under certificate of posting, and since it was not returned, it was deemed served. The respondent No.1 pleaded not guilty. The trial court held that the appellant failed to establish the essential requisites of the offence under Section 138 and acquitted the accused. The appellant challenged this acquittal. The legal issues were whether the appellant proved the service of statutory notice and the return of cheques. The appellant argued that the evidence of P.W.2, the Deputy Manager of the bank, proved the return of cheques for insufficient funds, and that the notice was sent by registered post and under certificate of posting, thus deemed served under Section 27 of the General Clauses Act. The High Court examined the evidence and found that the appellant did not examine any witness from the post office nor produce the acknowledgment card to prove service of notice. The court held that the presumption under Section 27 of the General Clauses Act was not attracted as there was no proof of proper addressing and posting. The court also noted that the trial court's finding regarding the cheque return memo was erroneous, but since the failure to prove notice service was fatal, the acquittal was upheld. The appeal was dismissed.
Headnote
A) Negotiable Instruments Act - Dishonour of Cheque - Section 138 - Service of Notice - Complainant must prove that statutory notice was served on the accused - Mere sending by registered post without examining postal witness or producing acknowledgment card is insufficient - Held that the trial court correctly acquitted the accused as the complainant failed to establish service of notice (Paras 2-5). B) Evidence Act - Presumption of Service - Section 27 of General Clauses Act - Deemed service arises only if the notice is properly addressed and posted - Complainant did not examine any witness from the post office nor produce the acknowledgment card - Held that the presumption under Section 27 was not attracted (Paras 4-5). C) Negotiable Instruments Act - Dishonour of Cheque - Section 138 - Cheque Return Memo - Complainant must prove the return memo by examining a bank official - The evidence of P.W.2, Deputy Manager, was not considered by the trial court - Held that the trial court's finding on this aspect was erroneous but the acquittal was upheld on the ground of failure to prove notice service (Paras 4-5).
Issue of Consideration
Whether the acquittal of the accused under Section 138 of the Negotiable Instruments Act was justified given the complainant's failure to prove service of statutory notice and the return of cheques.
Final Decision
Appeal dismissed. The acquittal of respondent No.1 under Section 138 of the Negotiable Instruments Act is upheld.
Law Points
- Service of statutory notice under Section 138 of Negotiable Instruments Act must be proved by complainant
- Deemed service under Section 27 of General Clauses Act requires proof of proper addressing and posting
- Complainant must examine witness from bank to prove cheque return memo
