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2011 DIGILAW 951 (KAR)

K. v. Venkatesh VS R. Nataraj

2011-09-23

V.JAGANNATHAN

body2011
ORDER V. JAGANNATHAN, J.—When the matter was called, the learned counsel for the petitioner is present and ready to submit the arguments. But, none appears for the respondent and there is no representation. Under the said circumstance, this Court is left with no other choice than to proceed to hear the petitioner’s counsel. 2. This petition is by the accused in the trial Court, who has been convicted in respect of an offence under Section 138 of the Negotiable Instruments Act and sentenced to pay Rs. 1,30,000/- fine and in default to undergo S.I. for 12 months and the said judgment being confirmed by the lower appellate Court by dismissing the petitioner’s appeal. 3. The case of the respondent-complainant in short is that, the accused petitioner borrowed hand loan of Rs. 90,000/- on 28.2.2000 promising to repay the said amount within 15 days, but did not do so and issued a cheque dated 29.11.2000 which cheque, on presentation, was returned with endorsement “insufficient funds”. It is the case of the complainant that he issued a legal notice to the petitioner and thereafter, he also took notice through certificate of posting to the office address of the petitioner and finally, after getting no response from the respondent, a complaint was filed under Section 200 of the Cr.P.C. 4. After appearance of the parties and the accused pleading not guilty, the trial Court considered the evidence let in by both sides and taking note of the documents produced, finally, the petitioner was convicted for the offence under Section 138 of the N.I. Act. The trial Court took the view that there was Service of notice on the petitioner and the signature on the cheque is also that of the petitioner. Thus, the petitioner was convicted and sentenced as aforesaid and the lower appellate Court dismissed the petitioner’s appeal. 5. Learned counsel Shri Gundegowda for the petitioner, at the outset, submitted that the petitioner was not served with the notice by the complainant and, therefore, the complaint itself is not maintainable. It is his submission that the petitioner’s address is No. 520, 3rd Main, Shakambari Nagara, Bangalore 78, whereas the notice was sent through registered post to the address bearing No. 191/2, 3rd Main, Shakambari Nagara, Bangalore 76. Therefore, there was no service of notice on the petitioner. 6. It is his submission that the petitioner’s address is No. 520, 3rd Main, Shakambari Nagara, Bangalore 78, whereas the notice was sent through registered post to the address bearing No. 191/2, 3rd Main, Shakambari Nagara, Bangalore 76. Therefore, there was no service of notice on the petitioner. 6. As far as the notice sent to the official address is concerned, it is submitted that the petitioner’s token number is 1050, but not 1015 and, at the relevant time, the petitioner was working on deputation at J.P. Nagara Police Station as Head Constable. As such, the Courts below were in error in holding that there was sufficient service of notice. Relying on the Apex Court decision in the case of M/s. Rahul Builders vs. M/s. Arihant Fertilizers & Chemical, reported in 2008 Cri.L.J. 452, it is argued that the complaint is not maintainable. 7. As far as the signature on the cheque in question is concerned, it is contended that the petitioner always signs in English, but not in Kannada and the cheque bears the signature of the petitioner in Kannada. As such, the signature of the petitioner is not found in the cheque, but it is the petitioner’s defence that he lost his cheque and it was misused by the complainant. For this reason also, the trial Court ought to have dismissed the complaint. 8. Having thus heard the learned counsel for the petitioner and not having the advantage of the arguments of the other side for the reason first mentioned above, having gone through the records, the contention put forward by the petitioner’s counsel appears to carry enough force behind it for the following reasons. 9. As far as the service of notice is concerned, the complainant has produced the postal cover along with acknowledgment and the acknowledgment, which is produced along with the notice at Ex. P10(a) does not bear the signature of the petitioner and the address mentioned in the acknowledgment as well as in the cover, which is marked as Ex. P4, is No. 191/2, 3rd Main, Shakambari Nagara, Bangalore 78, whereas the documents produced by the petitioner, which are at Exs. D1 to D5, reveal that the petitioner’s address is No. 520, I Main, 3rd Cross, Shakambari Nagara, Bangalore 78. The said documents are R.C. book, ration card, licence, bank pass book and finally the identity card. P4, is No. 191/2, 3rd Main, Shakambari Nagara, Bangalore 78, whereas the documents produced by the petitioner, which are at Exs. D1 to D5, reveal that the petitioner’s address is No. 520, I Main, 3rd Cross, Shakambari Nagara, Bangalore 78. The said documents are R.C. book, ration card, licence, bank pass book and finally the identity card. Therefore, service of notice on the address of the petitioner has not been established by the complainant. 10. As far as the notice being served at the official address of the petitioner is concerned, the token number of the petitioner is 1050 as could seen from the police identity card, whereas the cover which was sent to the official address was bearing the token number 1015. The trial Court had inferred that though there is difference in the token numbers, the fact that the petitioner was working at the Banashankari Police Station is sufficient to hold that the petitioner has been served with the notice. This conclusion of the trial Court cannot be accepted as there is no positive evidence to show that the notice sent under UCP to the official address having token No. 1015 was in fact served on the petitioner who, at the relevant time, according to the petitioner, was working at J.P. Nagara Police Station. As such, the reasoning of the trial Court cannot be accepted for this reason. 11. The Apex Court, in the case of M/s. Rahul Builders (supra), has held thus at paragraph 10: “10. Service of a notice, it is trite, is imperative in character for maintaining a complaint. It creates a legal fiction. Operation of Section 138 of the Act is limited by the proviso. When the proviso applies, the main Section would not. Unless a notice is served in conformity with Proviso (b) appended to Section 138 of the Act, the complaint petition would not be maintainable...........” Therefore, it is clear from the aforesaid position in law that, in the instant case, there was no service of notice and, as such, the complaint itself is not maintainable. 12. Apart from the aforesaid reasons, even on merits, the cheque produced at Ex. P1 is signed in Kannada by the drawer, whereas the signatures of the petitioner in all the documents produced before the trial Court is in English and so also the specimen signatures given to the bank. 12. Apart from the aforesaid reasons, even on merits, the cheque produced at Ex. P1 is signed in Kannada by the drawer, whereas the signatures of the petitioner in all the documents produced before the trial Court is in English and so also the specimen signatures given to the bank. As such, it is doubtful as to whether the signature found on the cheque Ex. P1 could be that of the petitioner. In other words, when the signature of the accused in the cheque is in Kannada whereas in all other documents, including the deposition before the trial Court, the petitioner has signed in English, so also in the vakalath, in view of the difference in the signature, the signature in the cheque, therefore, cannot be said to be that of the accused. This fact is also overlooked by the Courts below. 13. In the decision referred to by the petitioner’s counsel in the case of C.S. Rejikumar vs. E.S. Sukumaran, reported in 2002 Cri.L.J. 3255, it has been held by a learned single Judge of the Kerala High Court that, when there is dissimilarity in the signatures, it is obvious that Ex. P1 cheque does not contain the real signature of the accused. In the instant case also, applying the aforesaid observation, in view of the signature of the accused in all other documents is in English, it is doubtful whether the signature, which is in Kannada, in the cheque could be said to be that of the accused. 14. For the aforesaid reasons, the findings of the Courts below cannot be sustained on account of the infirmity of the said findings being perverse in nature apart from the Courts below having wrongly taken the view that the petitioner was served with the notice which, in fact is not correct. 15. In the result, the petition is allowed. The judgment of the Courts below stand set aside and the petitioner is acquitted of the offence under Section 138 of the N.I. Act and the amount, if any deposited by the petitioner, be refunded to him.