SURESH BALAKRISHNA Vs. MAHADEV NINGAPPA PIRAGI

JUDGEMENT

(1.) Heard the learned counsel for the appellant and the learned counsel for the respondent. The facts are that the appellant herein was the complainant, who had alleged that the respondent and he were friends and the respondent was carrying on business as a Civil Contractor along with his brother at Raibag and Gokak Taluks. The respondent who was said to be in need of funds for his business, had approached the complainant for Financial help. The accused had therefore requested for a loan of Rs. 50,000/-. The complainant is said to have arranged a loan of Rs. 48,000/- and the same was given to the respondent in May 2000. The accused while accepting the same, had assured repayment within four months and to secure due repayment, had issued a post-dated cheque dated 4.8.2000 for the said sum of Rs. 48,000/-. The same was drawn on Corporation Bank, Gokak Branch. Since the cheque was type-written and the complainant, in order to ascertain the correctness of the signature of the respondent, had cross-checked the same with the banker of the respondent and it is thereafter that the cheque was presented for encashment. However, the same had been returned with an endorsement that the funds were insufficient in the account. This was intimated to the appellant under a letter dated 4.12.2000. The appellant had thereafter issued a legal notice to the accused dated 11.12.2000. The same was served at the address of the accused on 28.12.2000.

(2.) The learned counsel for the appellant would submit that it is not denied that the demand notice sent by the complainant was addressed to the accused through the banker of the accused and the notice was sent to the said address. The same having been acknowledged by Ningappa Piragi, the father of the accused, the learned counsel would submit that, there is ample authority to support the contention that once the notice has been despatched by registered post, it is out of the hands of the petitioner and if acknowledgement is received as to the same having been delivered at the address to which it had been despatched, the requirement of service of notice is duly discharged. It does not lie in the mouth of the accused to then contend that since it was not served on him personally, the notice was not duly served and therefore, the pre-condition of instituting proceedings under Section 138 of the Act was not met. In this regard, the learned counsel places reliance on a decision of this court in A.Sathyanarayana vs. C.Nagaraj, 2000 2 KarLJ 183. In the said case, the complainant had instituted proceedings and the question was whether the notice issued immediately preceding the institution of the proceedings under section 138 of the Negotiable Instruments Act was duly served on the accused. In that case, a notice issued had been returned with an endorsement by the postal authorities that the 'addressee not found'. The question that arose was whether there was sufficient service of notice on the accused. In this regard, this court while relying upon a decision in M.A.Sridhar vs. Metalloy N.Steel Corporation,1998 ILR(Kar) 1841, has followed the dictum of the Supreme Court wherein it is laid down as follows:-

(3.) The learned counsel for the respondent, on the other hand, would vehemently oppose the appeal. He would firstly point out that the service of notice on the accused was a mandatory requirement and a pre-condition, which required to be established at the threshold before the proceedings could be addressed on merits. The very fact that the notice alleged to have been issued by the complainant was received by Ningappa Piragi of Kankanwadi Village and since to the knowledge of the accused, there are several members of the Piragi family in the said village and the notice having been served on Ningappa Piragi would not raise a presumption that it had indeed been served on the father of the accused and hence, he would submit that the trial court has rightly held that in the absence of the complainant having discharged the burden of establishing that the notice was duly served on the accused, it could not be said that the pre-condition, as prescribed under Section 138 of the Act, of service of statutory notice was duly discharged. He would next contend that insofar as the liability is concerned, notwithstanding that the presumption under Section 139 of the Act is in favour of the holder of an instrument, the fact remains that the respondent was a student. To this extent, the respondent had established and since the said fact was admitted by the complainant in his cross-examination, it was possible for the accused to take up the defence that the presumption was rebutted and hence, the burden shifted on the complainant to establish that the cheque was indeed issued in discharge of a legal liability and this is exactly the finding of the lower court and there is no infirmity in the same. He would therefore, submit that the appeal be dismissed as the judgment is amply supported by cogent reasoning on these two aspects and therefore, the very liability having been denied and the signature of the accused not having been established by any other evidence other than the say of the complainant, who was not even familiar with the signature of the accused, would render the cheque a doubtful document on which the complainant could not have succeeded.