A G CHANDRAPPA Vs. M G SHIVAPPA

JUDGEMENT

(1.) HEARD the learned counsel for the petitioner.

(2.) THE petitioner was the accused before the Trial Court, whereby the complainant had alleged an offence punishable under Section 138 of the Negotiable Instruments Act, 1881 (hereinafter referred to as the 'NI Act' for brevity), in the following background: It was the complainant's case that the petitioner and he were friends and the petitioner had borrowed a sum of Rs.45,000/- in the second week of February 2006 agreeing to repay the same within two months and in discharge of the debt, issued two post dated cheques dated 20.04.2006 and 20.05.2006 for a sum of Rs.20,000/- and Rs.25,000/- respectively, drawn on State Bank of Mysore, ADB Branch, Davanagere. When the complainant presented the cheques, the same were dishonoured for insufficient funds. Therefore, the complainant had issued a legal notice, which did not evoke any response from the petitioner. Therefore, a complaint was lodged. The petitioner having entered appearance had contested the same. Thereafter, the petitioner having tendered evidence, on a consideration of the evidence and the rival contentions, the following points were framed for consideration:

(3.) THE learned counsel for the respondent on the other hand points out that insofar as the contention that the service of notice is invalid as the same has never been served on the petitioner is concerned, is incorrect. As noted by the Trial Court, notice was served not only under the cover of registered post, but also by certificate of posting, which is deemed to have been served on the petitioner. Therefore, it cannot be said that the proceedings are vitiated. In the absence of the mode of service of notice prescribed under Section 138 of the NI Act, the mode of service as known to law, has been pressed into service and therefore, it cannot be said that the proceedings are vitiated on that count. Insofar as the defence set up by the petitioner is concerned, it was incumbent on the petitioner to tender express evidence in this regard, which he has failed to do. As regards the tripartite transactions as between Lohit Kumar, the complainant and the petitioner is concerned, the specific finding of the court below is that the so-called agreement produced by the petitioner would itself indicate that the complainant was not a party. Therefore, the contention set up that the cheques in question had been issued as security for the loan transactions between Lohit Kumar and the complainant, is not established. In that view of the matter, the learned counsel would submit that since the cheques issued are on the account of the petitioner and since there is no denial of the signatures appearing on the said cheques, the same cannot be denied. Therefore, he would submit that both the courts having arrived at concurrent findings of fact, there is no warrant for interference by this Court.