FAKIRAPPA Vs. SHIDDALINGAPPA

JUDGEMENT

(1.) THE petitioner in these two cases is facing prosecution for an offence under Section 138 of the Negotiable Instruments Act, 1881 ('n. I. Act' for short), on the complaint under Section 200, Cr. P. C. filed by the respondents-complainants. The petitioner is aggrieved with the order of the learned Magistrate directing issuing of process against him.

(2.) ON the complaint being presented, the learned Magistrate took cognizance, recorded the sworn statements of the complainants, found sufficient ground to proceed, and accordingly directed issuing of summons for the offence under Section 138 of the N. I. Act. Sri Basavaraj Sabarad, learned counsel for the petitioner-accused would urge two grounds in support of his plea seeking quashing of the proceeding.

(3.) THE first ground is that, the petitioner-accused had no notice of the fact of dishonouring of the cheque allegedly issued by him, and that, there was no notice as contemplated under clause (b) of the proviso to Section 138 of the N. I. Act. It is to be found that while Section 238 of the N. I. Act speaks of commission of an offence under the said provision where a cheque comes to be dishonoured, still that is subject to clauses (a) to (c) of the proviso to Section 138 of the N. I. Act, and the offence under Section 138 of the N. I. Act shall not be taken as having been committed if a notice of demand under clause (b) of the proviso has been issued and if the drawer of the cheque pays the amount of the cheque within fifteen days after the receipt of notice. It is, therefore, essential that the drawer of the cheque should receive notice of demand under clause (b) of the proviso to Section 138 of the N. I. Act. At times, service is deemed sufficient. In this particular case, what has happened is that the notice issued has been returned with the endorsement "left, not known". In the ordinary course, such an endorsement would lead to the conclusion that the drawer of the cheque had no notice of demand issued under clause (b) of the proviso to Section 138 of the N. I. Act, and therefore, had no opportunity of paying the amount within fifteen days in order to avoid prosecution. But, what the Supreme Court has said in State of Madhya Pradesh v. Hiralal (1996) 1 JT (SC) 669 is that, even in respect of endorsements "not available in the house", "house locked" and "shop closed", the notice must be deemed to have been served. Though Sri Basavaraj Sabarad, learned counsel for the petitioner-accused submits that the endorsement concerned herein viz. , "left, not known" has to stand on a different footing, I am of the opinion that, as rightly urged by Sri Basavaraj Bannur, learned counsel for the respondents-complainants, the said endorsement is no different from other endorsements that the Supreme Court was considering in the above said case of Hiralal. That being the position, it has to be taken as deemed service. Another decision of the Supreme Court in Sridhar M. A. v. M/s. Metalloy N. Steel Corporation, ILR 1998 Kant 1841 : (1998 AIR SCW 4112), however is pressed into service to urge that each case has to be decided on the facts of that particular case even with regard to this deemed service. In the said latter decision, the Supreme Court pointed out that, allthough in appropriate case, deemed service is to be accepted by the Court as indicated in the earlier decison of the Supreme Court in Hiralal's case referred to earlier, it may also be noted that such presumption of deemed service is not a matter of course in all the cases, and the deemed service is to be accepted in the facts of each case. It is as held by the Supreme Court in its latter decision that I said earlier that facts of each case have to be seen before concluding as regards deemed service of notice under clause (b) of the proviso to Section 138 of the N. I. Act. The question is as to when does that stage come. Sri Basavaraj Sabarad, learned counsel for the petitioner submits that, right at the initial stage of the basis of the averments in the complaint and in the sworn statement, this question needs to be decided. I would disagree with this. Even in the latter decision viz. , in Sridhar's case ILR 1998 Kant 1841 : (1998 AIR SCW 4112), the Supreme Court was considering whether or not it could be taken as deemed service on the basis of the evidence that had already been led, and in respect of which, there were decisions of the trial Judge and the High Court. It is, therefore, in my opinion appropriate that a decision in this regard viz. , whether or not service of notice under clause (b) of the proviso to Section 138 of the N. I. Act should be deemed to be sufficient, should be taken only after the evidence is led and on appreciation of the evidence concerned, and not at the initial stage. Therefore, the petitioner is at liberty to urge this contenton after the evidence is led in this regard by both the parties, and it is for the learned trial Judge to decide upon this aspect ultimately when he is disposing of the case on merits.