2017 (9) TMI 1918 - SC - Indian Laws

Dishonor of Cheque - statutory notice allegedly served upon the appellant was not even placed on record - acquittal of accused or not - HELD THAT - The service of the statutory notice calling upon the drawer of the cheque (after it has been disowned) to pay the amount of cheque is a necessary pre-condition for filing of the complaint under Section 138 of the Act. Therefore it was incumbent upon the respondent to produce the said statutory notice on record to prove the same as well. In this case this document was not even filed by the respondent along with the complaint and the question of proving the same was therefore a far cry. In a case like this we fail to understand as to how the aforesaid omission on the part of the respondent in not prosecuting the complaint properly could be ignored and another chance could have been given to the respondent to prove the case by producing further evidence. It clearly amount to giving an opportunity to the respondent to fill up the lacuna. Appeal allowed - decided in favor of appellant.

Summary

Issues Involved:
- Appeal against the judgment and order of the High Court challenging the acquittal of the appellant by the Trial Court in a complaint case under Section 138 of the Negotiable Instruments Act, 1881.
- Proper drafting of the complaint and presentation of evidence before the Court.
- Requirement of statutory notice in cases under Section 138 of the Act.
- Applicability of giving further opportunity to adduce evidence in case of lacuna in prosecution.

Analysis:

The judgment in question pertains to an appeal arising from a complaint case under Section 138 of the Negotiable Instruments Act, 1881. The appellant was acquitted by the Trial Court, which was challenged by the respondent in the High Court. The High Court, while accepting the inadequacy in the drafting of the complaint and presentation of evidence, allowed the appeal, set aside the acquittal, and remanded the matter back to the Trial Court for further evidence. However, the Supreme Court disagreed with this approach, emphasizing the necessity of a statutory notice in cases under Section 138 of the Act. The Court highlighted that the respondent failed to produce the statutory notice as required by law, and giving another chance to adduce evidence would amount to filling a lacuna in the prosecution, which is impermissible.

The Supreme Court noted that the service of a statutory notice is a crucial pre-condition for filing a complaint under Section 138 of the Act. In this case, the respondent did not produce the statutory notice, and the Court found it inappropriate to allow further evidence to be adduced to prove the case. The Court rejected the argument that such an approach was permissible in the interest of justice, citing a previous judgment that was deemed inapplicable to the present case due to its unique nature as a complaint case under Section 138 of the Act.

In conclusion, the Supreme Court allowed the appeal, setting aside the judgment of the High Court and reinstating that of the Trial Court. The decision underscored the importance of fulfilling statutory requirements and the limitations on providing additional opportunities to adduce evidence in cases under Section 138 of the Negotiable Instruments Act, 1881.