Isaksab Hatelsab Mokashi vs Vinay S/O Mallappa Matolli
2023 Latest Caselaw 1004 Kant

Citation : 2023 Latest Caselaw 1004 Kant
Judgement Date : 17 January, 2023

Karnataka High Court

Isaksab Hatelsab Mokashi vs Vinay S/O Mallappa Matolli on 17 January, 2023

Bench: Mohammad Nawaz

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                                   CRL.P No. 102478 of 2022


            IN THE HIGH COURT OF KARNATAKA

                     DHARWAD BENCH

        DATED THIS THE 17TH DAY OF JANUARY, 2023

                          BEFORE
       THE HON'BLE MR JUSTICE MOHAMMAD NAWAZ
        CRIMINAL PETITION NO. 102478 OF 2022 (482-)
BETWEEN:

1.   ISAKSAB HATELSAB MOKASHI
     AGE. 48 YEARS, OCC. GOVT. SERVANT,
     R/O. NEW VAIBHAV NAGAR, BELGAUM KANGALI,
     KARNATAKA-590010
                                             ...PETITIONER
(BY SRI. SHIVASAI M PATIL, ADVOCATE)

AND:

1.   VINAY S/O MALLAPPA MATOLLI
     AGE. 34 YEARS, OCC. CIVIL CONTRACTOR,
     R/O. BASAVA NAGAR, 1ST CROSS,
     BAILHONGAL, DIST. BELAGAVI
     KARNATAKA-591102
                                      ...RESPONDENT
(BY SRI.MALLIKARJUNA B.MADANALLI, ADVOCATE)

       THIS CRIMINAL PETITION IS FILED U/S 482 OF CR.P.C.,
SEEKING TO QUASH THE ENTIRE PROCEEDINGS AGAINST
THE PETITIONER IN THE COURT OF PRINCIPAL CIVIL JUDGE
AND JMFC, BAILHONGAL IN CC NO.117/2021 FOR THE
OFFENCE PUNISHABLE U/S 138 OF N.I. ACT.

       THIS PETITION COMING ON FOR ADMISSION, THIS DAY,
THE COURT MADE THE FOLLOWING:
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                                            CRL.P No. 102478 of 2022


                                ORDER

Petitioner is before this Court seeking quashing of the

entire proceedings pending against him in C.C.No.117/2021 on

the file of the Court of Principal Civil Judge and JMFC,

Bailhongal, registered for offence punishable under Section 138

of the Negotiable Instruments Act (for short 'the N.I.Act').

2. The contention of the learned counsel for petitioner

is that the legal notice issued to the petitioner has not been

served upon him and therefore, there is no cause of action

which arose for the complainant to file a complaint against the

petitioner. He contends that the notice sent to petitioner is

returned on the ground that the addressee is not residing and

therefore, contends that the mandatory requirement of Section

138 of N. I. Act has not been complied.

3. Respondent filed a complaint against the

petitioner/accused alleging an offence punishable under Section

138 of N. I. Act stating that a cheque issued by him towards a

legally enforceable debt for a sum of Rs.3,50,000/- was

dishonoured and the said amount was not paid in spite of

issuance of a legal notice.

CRL.P No. 102478 of 2022

4. The only contention raised in this petition seeking

quashing of the proceedings is that the legal notice issued to

respondent has been returned with an endorsement that the

addressee is not residing and therefore, there is no compliance

of the mandatory requirements. The learned counsel for

respondent has relied on a decision of the Hon'ble Apex Court

in M/S.AJEET SEEDS LTD., VS. K.GOPALA KRISHNAIAH

decided on 16.07.2014. Paragraph 8 of the said judgment is

extracted hereunder:

"8. This Court then referred to Vinod Shivappa's case where the above aspects have been highlighted. This Court quoted the following paragraph from Vinod Shivappa with approval.

"15. We cannot also lose sight of the fact that the drawer may by dubious means manage to get an incorrect endorsement made on the envelope that the premises has been found locked or that the addressee was not available at the time when postman went for delivery of the letter. It may be that the address is correct and even the addressee is available but a wrong endorsement is manipulated by the addressee. In such a case, if the facts are proved, it may amount to refusal of the notice. If the complainant is able to prove that the drawer of the cheque knew about the notice and deliberately evaded service and got a false endorsement

CRL.P No. 102478 of 2022

made only to defeat the process of law, the Court shall presume service of notice. This, however, is a matter of evidence and proof. Thus even in a case where the notice is returned with the endorsement that the premises has always been found locked or the addressee was not available at the time of postal delivery, it will be open to the complainant to prove at the trial by evidence that the endorsement is not correct and that the addressee, namely the drawer of the cheque, with knowledge of the notice had deliberately avoided to receive notice. Therefore, it would be pre-mature at the stage of issuance of process, to move the High Court for quashing of the proceeding under Section 482 of the Code of Criminal Procedure. The question as to whether the service of notice has been fraudulently refused by unscrupulous means is a question of fact to be decided on the basis of evidence. In such a case the High Court ought not to exercise its jurisdiction under Section 482 of the Code of Criminal Procedure."

5. The matter is at initial stage of recording the plea of

the accused. The grounds urged by petitioner that the notice

has not been served upon him and therefore, the ingredients of

Section 138 of the N.I.Act is not attracted, cannot be gone into

at this stage, in this petition filed under Section 482 of Cr.P.C.

Admittedly, legal notice has been issued by the complainant.

Whether the petitioner was residing in the said address or not,

is a matter for trial. It is premature to hold that the address to

CRL.P No. 102478 of 2022

which the notice was sent is incorrect or that the accused was

not residing in the said address. The decision relied by the

learned counsel for respondent is aptly applicable to this case.