YELAHANKA MERCHANT FINANCE CO-OP. PVT. LTD., BY PASS, B.B. ROAD, YELAHANKA, BANGALORE-560064. REPRESENTED BY ITS MANAGER AND POWER OF ATTORNEY HOLDER SMT. GIRIJA, W/O. GARUDAPPA. Vs. S.N. RENUKAPUTTASWAMY, S/O. D.V. PUTTASWAMAIAH

JUDGEMENT

(1.) THERE has been a delay of 1595 days in filing this appeal. The appellant, a private limited company was the complainant before the trial Court. The appellant initiated proceedings in C.C. No 10591/2004 against the respondent for the offence punishable under Section 138 of the Negotiable Instruments Act, 1881 (for short "the Act") in respect of cheque said to have been issued by the respondent for discharge of debt stated to be due by her to the appellant in a sum of Rs. 3 lakhs. The trial Court by the judgment under appeal dated 29.6.2010, acquitted the respondent inter alia on the ground that there was no proper statutory notice as required by clause (b) of proviso to Section 138 of the Act inasmuch as the respondent who is a lady has not been properly addressed in the said notice and the name of the village has also been wrongly mentioned in the notice as such the notice was not in accordance with the requirement of law, therefore, the respondent -accused had no opportunity to comply with the demand made therein. The appellant has presented this appeal belatedly along with an application to condone the delay. Having regard to the long delay in presenting the appeal, before considering the question as to whether notice of this application is required to be issued to the respondent calling upon her to contest the matter, I have heard the learned counsel for the appellant on the merits of the appeal. Having heard the learned counsel, I find no merit in the appeal. Though the cause of action for the offence under Section 138 of the Act commences from the date on which the cheque is returned unpaid, the offence would be complete only upon the failure of the drawer of the cheque to pay the amount covered under the cheque within 15 days from the date of receipt of the demand made by the drawee in writing. It is fairly well settled by catena of decisions that the object of providing for a notice as per clause (b) of proviso to Section 138 of the Act is only to give an opportunity to the drawer of the cheque to make amends to his follies in not making necessary arrangements for honouring the cheques issued by him and to avoid the criminal prosecution. Therefore, having regard to the object of the necessity in issuing the notice, it has been held that issuance of notice is mandatory to make the offence complete which would entitle the drawee of the cheque to initiate prosecution for the offence. The trial Court in this case having regard to the notice said to have been issued by the appellant has found that there was no proper compliance of the statutory requirement of clause (b) of proviso to Section 138 of the Act. The respondent - accused is one Smt. S.N. Renuka wife of Puttaswamy. However in the notice said to have been issued and in the complaint as originally filed, she was described as S.N. Renukaputtaswamy son of D.V. Puttaswamaiah, Sri Tirumala Wines, Kempegowda Nagar, Narasandra, Bangalore District, whereas the notice sent through Registered Post Acknowledgement Due was sent to Nagasandra, Bangalore City.

(2.) HAVING regard to the above, in my opinion, the trial Court has rightly held that notice said to have been issued by the appellant was not properly addressed to the respondent - accused and it was also not sent to the correct address of the respondent - accused. In this view of the matter, the judgment of acquittal on merits does not suffer from any perversity or irregularity warranting interference by this Court. Therefore, I find no grounds to issue notice of I.A. 1/12 filed for condonation of delay. In view of the above, the applications I.A. 1 and 2 of 2012 as well as the appeal are rejected.