C C ALAVI HAJI Vs. PALAPETTY MUHAMMED

JUDGEMENT

(1.) One of the questions which arises for consideration is as to whether service of notice in terms of the Proviso (b) appended to section 138 of the Negotiable Instruments Act, 1881 is mandatory. It is not disputed that service of notice is an ingredient of the offence. In this case, the complainant-respondent accepted the fact that the notice could not be served upon the petitioner and it was returned unserved with an endorsement of the postal peon "Out of Station". The complainant in the complaint petition does not allege that the service of notice was deliberately avoided by the petitioner or the postal endorsement of the postal peon on the envelope was wrongly obtained. The question which arises for consideration is as to whether in a situation of this nature, the Court could take cognizance of the offence u/s. 138 of the Negotiable Instruments Act on the basis of the averments made in the complaint petition.

(2.) The learned Counsel appearing on behalf of the respondent has drawn our attention to a decision of this Court's in D.Vinod Shivappa V/s. Nanda Belliappa, 2006 2 BCR(Cri) 31, wherein a Division Bench of this Court held:

(3.) However, in the said decision, this Court has not taken into consideration the presumption arising out of an official act as provided u/s. 114 of the Evidence Act. The presumption raised u/s. 114 of the Evidence Act is undoubtedly a "rebuttal presumption", but for the purpose of rebuttal of such a presumption, necessary averments must be made in the complaint petition. The question which, therefore, in our opinion, arises for consideration, is whether in absence of any averments in the complaint petition, that the accused had a role to play in the matter of such endorsement; the same could have been entertained keeping in view the decision of this Court in Vinod Shivappa's case (supra). We are of the opinion that the Division Bench having not considered that aspect of the matter, the same cannot be said to be an authoritative pronouncement on the said question; as even in such a case, the Court shall have to proceed to try the accused for commission of an offence u/s. 138 of the Negotiable Instruments Act; although, on the face of the complaint petition, no offence can be said to have been made out. We, therefore, are of the opinion that the matter should be considered by a larger Bench.