A SUDERSHAN Vs. MANNEN SHABIR

JUDGEMENT

(1.) This appeal is preferred against the judgment and order of acquittal recorded by the First Additional Metropolitan Sessions Judge, Hyderabad, dated 30/11/1994, in Criminal Appeal No. 52, of 1994. By this order the learned Sessions Judge reversed the judgment and order of conviction recorded by the XVIIth Metropolitan Magistrate, Hyderabad, by his judgment and order dated 21/01/1994, in C.C. No. 24 of 1991. Learned counsel for the appellant/complainant contended that the impugned judgment and order of the appellate court is illegal and without jurisdiction and it is contrary to law and the facts of the case. On the other hand, learned counsel for the respondent supported the impugned judgment and order.

(2.) In order to appreciate the rival contentions it is necessary to note a few facts of the case. The sole respondent-accused issued a cheque dated 8/09/1990, for an amount of Rs. 50,000 in favour of the complainant towards the purchase of iron scrap from the complainant. The said cheque was presented on 10/09/1990, but it was returned with the endorsement of the bank on the same date as "not arranged for" which is marked as exhibit P-2. The said cheque was again re-presented on 8/10/1990, but it was again returned on the same date with endorsement of the bank "effects not cleared, please present again" which is marked as exhibit P-3. Thereafter, the complainant gave a notice dated 11/10/1990, vide exhibit P-4 to the respondent by registered post. But the said registered post was returned. The postman noted on the envelope that the party was continuously absent for seven days and returned the cover, which is marked as exhibit P-5. Thereafter, the complainant waited for fifteen days up to 7/11/1990. But the respondent did not make the payment of the amount under cheque. After one month thereafter, i.e., on 4/12/1990, the complainant filed the case before the court. The complainant examined himself as P.W. 1. His son was also examined as P.W. 2. P.W. 3 is the branch manager of the State Bank of Hyderabad, Malakpet Branch. On the basis of the entire appreciation of the evidence on record, the trial court convicted the accused of an offence punishable under section 138 of the Negotiable Instruments Act and accordingly convicted him to undergo rigorous imprisonment for a period of six months and to pay a fine of Rs. 1,000, in default of payment of fine to undergo simple imprisonment for a period of two months. Being aggrieved by the said judgment and order the accused preferred an appeal before the First Additional Metropolitan Sessions judge, Hyderabad, who by his impugned order acquitted the accused of the offences. It is in these circumstances the complainant has come up in appeal, as I have already stated above.

(3.) Learned counsel for the appellant contended that the appellate court was in error in acquitting the accused solely on the ground that there was no sufficient notice to the accused in terms of section 138, clauses (b) and (c) of the Negotiable Instruments Act. He further submitted that so far as the complainant is concerned he has issued a notice as per section 138(b) and in case the notice is returned unserved the said notice shall be taken as sufficient notice for the purpose of clause (b) and within fifteen days thereafter, the accused shall make payment and in case of non-payment, the offence is automatically constituted under section 138 of the Negotiable Instruments Act. In support of his contention he relied upon the judgment of the High Court of Madras in S. Prasanna v. Vijayalakshmi [1993] 76 Comp Cas 522; [1992] Crl. LJ 1233; [1993] 1 Crimes 679. On the basis of this judgment he submitted that such notice returned with a postal endorsement as "not found" shall be taken as a constructive notice to the accused. On the other hand counsel appearing for the respondent contended that in the instant case no notice is served under clause (b) of section 138 of the Act and as such no offence would be constituted under that clause. Therefore, payment of the amount within fifteen days as contemplated under section 138(c) would not arise. In support of his argument he cited another judgment of the learned single judge of the High Court of Madras in R. M. Sundaram v. C. M. Ramraj [1993] 3 Crimes 175 (Mad). In view of this kind of legal controversy raised by learned counsel on both sides the following point arises for my consideration :