RAJEV DUBEY Vs. KULDEP SINGH THAKUR

JUDGEMENT

(1.) This petition is directed under Section 378(4) of Cr.P.C. for seeking special leave to appeal against the judgment dated 25-8-2005 passed by Judicial Magistrate, First Class Jabalpur in Complaint Case No. 2494/02 acquitting the respondent from the charge punishable under Section 138 of Negotiable Instruments Act, 1881 (In short "the Act").

(2.) The facts giving rise to this petition are that the respondent had borrowed sum of Rs. 40.000/- from the applicant in the month of January 2000 and in consideration of it, the cheque No. 652581 dated 6/7/2000 and No. 652582 dated 12/7/2000 each one for Rs. 20,000/- were given to the applicant. On 28-9-2000 the aforesaid cheques were presented by the applicant to his banker the Bank of Maharashtra for collection, but the same were returned to him as dishonoured on account of insufficiency of fund as mentioned in the memo of the Bank. Again these cheques were presented for collection on 3- 12-2000, but again on account of insufficiency of fund the same were dishonored and returned to the applicant with the memo of the Bank. Thereafter as alleged on 8-12- 2000 a registered notice was sent to the respondent on behalf of the applicant. The same was returned unserved on 20-12- 2000. It was also said that on 8-12-2000 there was strike of postal officials. Hence, notice was sent through Courier on 8-12- 2000 but it was returned on aforesaid date with note that addressee is not available at the mentioned address in spite of the intimation. Thereafter, the appellant personally gone to Bhopal and tried to serve the notice on respondents on 22/12/2000, but he refused to take the same then respondent was orally informed for payment of consideration of aforesaid cheques within 15 days, otherwise legal action would be followed. Instead the information no effort was made for payment of aforesaid cheques by the respondent. Subsequent to it, this complaint was filed. After recording the plea trial was held. During trial the applicant has examined himself as (P. W. 1) and his father Shri R. C. Dubey (P.W. 2). On appreciation of it the transaction in between the parties was found genuine but on account of non-compliance of procedure of Section 138 of the Act as sending and service of notice on respondent was not found as proved in accordance with law, the respondent was acquitted. Hence, this petition is preferred for special leave to appeal.

(3.) Shri Rajesh Mahendiratt, learned counsel for the applicant has submitted that after receiving the information about dishonouring the cheques on 3-12-2000, there was strike of postal officials hence, notice could not be sent through registered post but the same was sent on 15-12-2000 through Reliance courier service (Ex. P. 8), within 15 days from the date of receipt of said information from the Bank. Such envelope of notice was returned unserved with the note that the addressee was not available at the time of service, his house was found locked in between morning to evening. It was also said that the bona fide of the applicant is apparent because he sent a notice through registered post soon after call of the strike of postal officials on 21-12-2000, although it was beyond 15 days but such envelope was also returned unserved with note that addressee is not available in spite of Information. The receipt of the courier was proved by the applicant. As per provision of Section 138 of the Act only sending the notice is basic requirement and the same was complied with in the instant case. As per his submission notice through courier is also legal as laid down by the Apex Court and by this Court also. In support of this contention he cited the following decisions : (1) AIR 1999 SC 1609 : (1999 Cri LJ 2276) (M/s. SIL Import, USA v. M/s. Exim Aides Silk Exporters), (2) 2000 (1) MPLJ 1 : (1999 Cri LJ 4606) (SC) (K. Bhaskaran v. Sankaran Vaidhyan Balan). (3) 2002 Cri LJ 4176 (Devendra Kumar v. Lalit Porwal). (4) 2005 (1) MPLJ 54 Janak Gandhi v. State of M.P.