2021 (11) TMI 159 - HC - Indian Laws

Dishonor of Cheque - insufficiency of funds - appellant/complainant had failed to prove that he had sent the statutory notice to the last known address of the first respondent/accused - Section 138 of the Negotiable Instruments Act - HELD THAT - On a reading of the evidence rendered by PW1 as well as the evidence rendered by PW3, the postman, who stated that after the marriage of the first respondent/accused, she was not staying at Nadapuram, it is clear that despite the knowledge that the first respondent/accused was not staying at Nadapuram, the appellant/complainant had for reasons best known to him decided to issue notice to the former address of the first respondent/accused at Nadapuram - I am constrained to hold that there is a clear failure to comply with the statutory mandate to issue a notice, as required under the provisions of the Negotiable Instruments Act. It is not necessary to consider the question as to whether Exhibit P1 cheque was actually executed by the first respondent/accused and as to whether the learned Magistrate had gone wrong in finding that an offence under Section 138 of the Negotiable Instruments Act could not be made out on account of the difference in the signature on Exhibit P1 cheque with the admitted signature of the first respondent/accused - a complaint under Section 138 can be filed only after complying with the statutory formalities. There is a clear failure on the part of the appellant/complainant to comply with the statutory formality of issuing a notice to the last known address of the first respondent/accused - Appeal dismissed.

Summary

Issues:
Challenge to the acquittal under Section 138 of the Negotiable Instruments Act based on discrepancies in signature, failure to prove execution of the cheque, and non-compliance with statutory notice requirements.

Analysis:
The appeal was filed against the acquittal of the accused in a case under Section 138 of the Negotiable Instruments Act. The appellant alleged that the accused had issued a cheque for a sum which was dishonored due to discrepancies in the signature and insufficient funds. The court found discrepancies in the handwriting and signature on the cheque compared to the admitted handwriting of the accused. Additionally, it was noted that the statutory notice required under the Act was not sent to the last known address of the accused, leading to non-compliance with Section 138 requirements.

The appellant contended that the execution of the cheque was valid and that there was a deliberate attempt by the accused to use a different signature. The appellant argued for the application of the statutory presumption under Section 139 of the Act, claiming that the notice was sent to the correct address. However, the court found that the notice was not served at the correct address, as the appellant had knowledge that the accused had moved but still sent the notice to the old address. This failure to comply with the statutory notice requirement was deemed crucial for establishing the offense under Section 138.

The defense argued that the appellant had misused the cheque and failed to produce evidence of the alleged transaction. It was emphasized that without proving the execution of the cheque, the offense under Section 138 could not be established. The court highlighted the importance of the statutory notice and held that without proper compliance with this requirement, the question of proving the execution of the cheque becomes secondary.

Ultimately, the court dismissed the appeal, emphasizing the significance of adhering to the statutory formalities, particularly the issuance of a notice to the last known address of the accused. The failure to comply with this essential requirement rendered the appeal meritless, leading to the dismissal of the case.