EXCEL INDUSTRIES LIMITED Vs. PRAKASH

JUDGEMENT

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

(2.) THE appellant was the complainant who had lodged a private complaint. It is a concern involved in the manufacture of chemicals and having its branch office at Hubli and the accused is said to be carrying on business in the name and style of M/s. Basava Agro Agency, in Chittapur. He was purchasing pesticides from the complainant, on credit basis. It transpires that he had issued a cheque, in discharge of an amount due from him, dated 22.11.2001, for a sum of Rs. 2 lakh. The cheque when presented for clearance was dishonoured for want of sufficient funds. The complainant having been informed of this, the complainant had issued a legal notice calling upon the respondent -accused to make the payment within 15 days of receipt of the notice. The notice was returned as not claimed by the accused. It is in that background that a complaint was lodged. The trial Court having examined the evidence tendered by the complainant and the defence set up by the respondent had framed the following points for consideration:

(3.) THIS was challenged by the accused in an appeal before the lower appellate Court. The lower appellate court has allowed the appeal mainly relying on the decision of this Court in K. Narayana Nayak Vs. M. Shivarama Shetty [ : 2008 (4) AIR Karnataka 398] and has opined that it was necessary for the complainant to examine the postal authority in order to prove non -service of notice and further the burden of proving the serving of notice was on the complainant and admittedly there could not be any deemed service of the notice and therefore the conviction was bad in law and has allowed the appeal.