Karnataka High Court

H G Suman vs Vincent Pinto on 7 January, 2025

Author: V Srishananda

Bench: V Srishananda

                         1

IN THE HIGH COURT OF KARNATAKA AT BENGALURU

   DATED THIS THE 07TH DAY OF JANUARY, 2025

                     BEFORE

      THE HON'BLE MR. JUSTICE V. SRISHANANDA

             CRL.R.P.No.1021/2021
           C/W CRL.R.P.No.1058/2021

IN CRL.R.P.NO.1021/2021

BETWEEN:
1 . H G SUMAN
    S/O H B GOPAL
    AGED ABOUT 36 YEARS,
    R/AT HALASE VILLAGE AND POST,
    MUDIGERE TALUK
    CHIKKAMAGALURU DISTRICT-577132
                                      ...PETITIONER
(BY MISS.N.VANDANA FOR SRI HARISHA.A.S,
ADVOCATES)

AND

1 . VINCENT PINTO
    S/O LATE J PINTO
    AGED ABOUT 58 YEARS
    COFFEE PLANTER
    R/A HUDUGANAHALLI KHAN ESTATE,
    GABGUL POST VIA MAGUNDI
    MUDIGERE TALUK
    CHIKKAMAGALURU DISTRICT-577132
                                     ...RESPONDENT

(BY SRI H.N.MANJUNATH PRASAD, ADVOCATE)
                          2


     THIS CRL.RP IS FILED UNDER SECTION 397 R/W
401 CR.P.C PRAYING TO SET ASIDE THE JUDGMENT
DATED 16.08.2021 PASSED BY THE LEARNED II
ADDITIONAL    DISTRICT   AND   SESSIONS    JUDGE,
CHIKKAMAGALURU IN CRL.A.NO.35/2020 AND ALSO THE
JUDGMENT OF CONVICTION AND ORDER OF SENTENCE
DATED 03.01.2020 PASSED BY THE SENIOR CIVIL JUDGE
AND J.M.F.C., MUDIGERE IN C.C.NO.188/2019 AND
CONSEQUENTLY ACQUIT THE PETITIONER FOR THE
CHARGES WITH WHICH THEY STOOD CHARGE.

IN CRL.RP.NO.1058/2021

BETWEEN

1 . H G SUMAN
    S/O H B GOPAL
    AGED ABOUT 36 YEARS,
    R/AT HALASE VILLAGE AND POST
    MUDIGERE TALUK
    CHIKKAMAGALURU DISTRICT-577132
                                      ...PETITIONER
(BY MISS N.VANDANA, FOR SRI HARISHA.A.S,
ADVOCATES)

AND

1 . VINCENT PINTO
    S/O LATE J PINTO
    AGED ABOUT 58 YEARS,
    R/A HUDUGANAHALLI KHAN ESTATE
    GABGUL POST, VIA MAGUNDI
    MUDIGERE TALUK
    CHIKKAMAGALURU DISTRICT-577 122
                                    ...RESPONDENT
(BY SRI H.N.MANJUNATH PRASAD, ADVOCATE)
                                 3

     THIS CRL.RP IS FILED UNDER SECTION 397 R/W
401 CR.P.C PRAYING TO SET ASIDE THE JUDGMENT
DATED 16.08.2021 PASSED BY THE LEARNED II
ADDITIONAL    DISTRICT   AND   SESSIONS    JUDGE,
CHIKKAMAGALURU IN CRL.A.NO.36/2020 AND ALSO THE
JUDGMENT OF CONVICTION AND ORDER OF SENTENCE
DATED 03.01.2020 PASSED BY THE SENIOR CIVIL JUDGE
AND J.M.F.C., MUDIGERE IN C.C.NO.187/2019 AND
CONSEQUENTLY ACQUIT THE PETITIONER FOR THE
CHARGES WITH WHICH THEY STOOD CHARGE.

     THESE PETITIONS HAVING BEEN RESERVED FOR
ORDERS, COMING ON FOR PRONOUNCEMENT THIS DAY,
THE COURT PRONOUNCED THE FOLLOWING:-

CORAM: HON'BLE MR JUSTICE V SRISHANANDA

                       CAV ORDER

    (PER: HON'BLE MR JUSTICE V SRISHANANDA)

      These two revision petitions are filed by the common

accused against the common complainant but in two

different   criminal   cases,       whereby   accused/revision

petitioner has been convicted for the offence punishable

under Section 138 of Negotiable Instruments Act in

C.C.No.188/2019 and in C.C.No.187/2019 and whereby

directed to pay fine amount of Rs.59,00,000/- and with

default sentence of simple imprisonment for two months,

out of which Rs.58,90,000/- was ordered to be paid as
                             4

compensation and balance amount of Rs.10,000/- towards

defraying expenses of the State and Rs.30,50,000/- was

ordered to be paid as compensation and balance amount

of Rs.10,000/- towards defraying expenses of the State

with default sentence of simple imprisonment for the

period of two months respectively.


     2.    Facts in nutshell in respect of both the cases

are as under:


     Two separate complaints came to be lodged under

Section 200 Cr.P.C., alleging the commission of the offence

punishable under Section 138 of Negotiable Instruments

Act, contending that complainant is a coffee planter,

possessing coffee estate and he is growing coffee and

pepper crops in his estate. Accused is in the business of

dealing of coffee beans at Mudigere.    In the year 2008

accused approached the complainant in C.C.No.188/2019

and purchased 2280 bags of Robusta cherry coffee at the

rate of Rs.2,500/- per bag, total value being sum of

Rs.57,74,976/- and paid a sum of Rs.9,50,000/- and
                                     5

assured to pay the remaining amount of Rs.48,00,000/-

and purchased pepper weighing 6093.6 kilograms at the

rate     of     Rs.160/-     per   kilogram,     total   value   being

Rs.9,74,976/-.


       3.        In C.C.No.187/2019 accused approached the

complainant and purchased 2321 bags of Robusta cherry

coffee at the rate of Rs.1,800/- per bag, total value being

sum of Rs.41,77,800/- and paid a sum of Rs.25,00,000/-

and      assured        to   pay    the   remaining      amount     of

Rs.16,77,800/-.


       4.        Towards payment of said amount in both the

cases,        accused    issued    cheques     bearing   Nos.594157,

625746, dated 30.05.2011 and 28/02/2011, in a sum of

Rs.57,74,976/- and Rs.29,42,800/- respectively, drawn on

Karnataka Bank, Niduwale Branch, which on presentation

returned with an endorsement 'Funds Insufficient'.


       5.        Separate legal notices were issued calling upon

the accused to repay the amount and there was no reply
                                  6

nor compliance of the callings of the legal notice and

therefore, action was sought.


      6.     Learned Trial Magistrate after completing the

formalities summoned the accused. Accused appeared and

engaged the services of an Advocate. Thereafter, plea was

recorded. Accused pleaded not guilty. Therefore, trial was

held separately in both the cases.


      7.     In C.C.No.188/2019 complainant is examined

as   P.W.1   and   Sri   Iqbal       Ahamed   as   P.W.2.   In

C.C.No.187/2019 complainant is examined as P.W.1 and

Sri Nanjegowda is examined as P.W.2. In both the cases

complainant placed documentary evidence on record which

were exhibited and marked as Exs.P.1 to P.29 and Exs.P.1

to P.22 respectively.


      8.     In the cross-examination of P.W.1, it has been

elicited that P.W.1 is unable to say exact date of the coffee

beans and pepper were sold to the accused.
                              7

      9.    He has also answered that he has written in a

book about the sale of coffee and pepper, but said book is

misplaced. He has answered that in the year 2009-10 he

had sold the coffee and despite there was due, he has

again sold the coffee in the next year. He has answered

that he is not remembering what is the rate of coffee per

kilogram. He has further answered that he has not shown

the quantity of coffee grown in his estate for the year

2009-10 in the complaint.    He has further answered that

the legal notice was sent to the accused through registered

post and courier. He has failed to identify the signature in

Ex.P.7 in column No.3. He denied the suggestion that in

collusion with the Courier Agent, he has concocted Exs.P.6

and P.7. He had answered that apart from the cheque, the

accused has given a written letter.


      10.   Likewise, in the cross-examination of P.W.1 in

C.C.No.187/2019, complainant has answered that at the

time of filing the case, bag containing 50 kilograms of

coffee beans was being sold at Rs.1,800/-.          He has
                             8

answered that in the year 2008 he had 35 acres of coffee

estate and he was growing Robusto coffee and roughly

about 50 kilograms of coffee beans would be grown in one

acre of the land.


      11.   He admits that the cheques were not given by

the accused on the date of sale of coffee. He admits that

he had obtained cash of Rs.25,00,000/- as against the sale

of 41,77,800/- worth coffee.    To a specific question that

after obtaining Rs.25,00,000/- lakhs whether the cheque

was issued for the balance amount, witness has answered

that the cheque amount involved in C.C.No.187/2019 was

based on the balance amount and the amount that was

due from the accused for the year 2009.


      12.   He has specifically answered that in the year

2008 he had sold the coffee at the rate of Rs.2280/- per

bag and he does not remember exact number of bags

which were sold in the year 2008.          He has further

answered that in the year 2010 he has sold 2321 bags of

coffee.
                                 9

      13.    He denied the suggestion that he has filed a

case stating that because of passing of high tension wire

over his coffee estate, he has filed                a petition   for

compensation.


      14.    He denies the suggestion that accused never

purchased coffee from the complainant and therefore,

accused is not liable to pay the amount.


      15.    Sri B. Nanjegowda, Assistant Sub Inspector of

Police, who had searched for the accused as he was

absconding, has been examined as P.W.2 and his evidence

was   also   recorded   under       Section   299    Cr.P.C.,    and

therefore, there was no cross-examination.


      16.    Learned Trial Magistrate has recorded the

accused statement in both the cases as is contemplated

under Section 313 Cr.P.C., wherein accused has denied the

incriminatory circumstances in both the cases and choose

to examine himself as D.W.1 in both the cases.
                             10

     17.   In his examination-in-chief, he has stated that

he had purchased the coffee in the year 2007-08 and at

that juncture, he had issued the cheque in question and he

had repaid the money, but accused had not returned the

cheque which was given in blank.


     18.   It is his specific case that the complainant has

misused the cheque and he had not purchased the coffee

in the year 2010-11 and for that purpose he has issued the

cheque in question.


     19.   In the cross-examination, he has specifically

admits that he cannot say the numbers of four cheques

which have been issued by him to the complainant.          He

has however answered that two cheques have been

misused by the complainant and balance two cheques has

been misused through Sri Joys Saldana.


     20.   He   admits   that    he   had   not   lodged   any

complaint against the complainant for alleged misuse of

the cheques. He admits that in Ex.P.8, the address
                                 11

mentioned is his address. He admits that Mudigere police

had arrested him from Bengaluru and later on he was

enlarged on bail and at that Juncture, one Sri Upendra had

stood as surety for him.


     21.     He further admits that when he jumped the

bail, police had again arrested him and produced him

before the Court.


     22.     Based on the above evidence on record,

learned    Trial   Magistrate   heard      the   parties   and   on

consideration of the oral and documentary evidence,

convicted the accused and sentenced as under in both the

cases.

     C.C.No.188/2019

           "Acting u/s.255(2) of Cr.P.C., the accused is
     hereby convicted for the offence punishable u/s.138
     of the Negotiable Instrument Act.

           Accused   is   sentenced   to    undergo   simple
     imprisonment for one year and to pay fine of
     Rs.59,00,000/- and in default of payment of fine he
     shall undergo SI for the period of 2 months.
                                12

            If fine amount is recovered from accused, out
     of the fine amount Rs.58,90,000/- shall be given to
     the complainant as per section 357(1) of Cr.P.C.
     and Rs.10,000/- shall be confiscated to the State.

            The bail bond and surety bond of the accused
     is hereby stands cancelled."

    CC No.187/2019

             "Acting u/s.255(2) of Cr.P.C., the accused is
     hereby convicted for the offence punishable u/s.138
     of the Negotiable Instrument Act.

             Accused is sentenced to undergo simple
     imprisonment for one year and to pay fine of
     Rs.30,50,000/- and in default of payment of fine he
     shall undergo SI for the period of 2 months.

             If fine amount is recovered from accused, out
     of the fine amount Rs.30,40,000/- shall be given to
     the complainant as per section 357(1) of Cr.P.C.
     and Rs.10,000/- shall be confiscated to the state."

             The bail bond and surety bond of the accused
     is hereby stands cancelled."

      23.     Being   aggrieved     by   the   same,       accused

preferred appeals before the II Additional District and

Sessions Judge in Crl.A.No.35/2020 and Crl.A.No.36/2020

respectively.
                                13

      24.    Learned Judge in the First Appellate Court after

securing the records, heard the parties in detail and by

judgment dated 16th August, 2021 dismissed both the

appeals and upheld the order of conviction passed by

learned Trial Magistrate.


      25.    Being further aggrieved by the same, accused

is before this Court in this revision.


      26.    Sri Harisha A.S., learned counsel for the

revision petitioner reiterating the grounds urged in the

revision petition vehemently contended that both the

Courts erred in law in not appreciating the material

evidence properly on record.


      27.    He    further   contended     that   there   was   no

compliance    to   the   provisions   of    Section   138(b)    of

Negotiable Instruments Act which is a sine qua non for

taking cognizance of the offence punishable under Section

138 of Negotiable Instruments Act. Therefore, entire trial

stood vitiated and sought for allowing the revision petition.
                               14

      28.    He also pointed out that admittedly, the legal

notice has been issued through registered post and

courier.    P.W.1 has admitted that he cannot identify the

signature in column No.3 of the courier acknowledgment

slip which shows that there was no proper service of notice

and hence, the order of conviction is incorrect resulting in

miscarriage of justice and sought for allowing the revision

petition.


      29.    Per contra, counsel for respondent supported

the impugned orders in both the cases.


      30.    He   further   contended   that   in   the   cross-

examination accused has admitted the transaction of

purchase of coffee in the year 2008 and he had repaid the

money and cheque given by him at that juncture has been

misused by the complainant which is not proved by the

accused.


      31.    He further pointed out that there is a clear

admission by accused himself that he has not lodged any
                                    15

complaint to the police about the alleged misuse and

sought for dismissal of the revision petition.


        32.     Having heard the parties in detail, this Court

perused the material on record meticulously.


        33.     On such perusal of the material on record,

following points would arise for consideration:


   1)         Whether the revision petitioner has made out a
              case that the impugned judgment in both the
              cases are suffering from legal infirmity and
              perversity and thus calls for interference?

   2)         Whether the sentence is excessive?

   3)         What order?


        34.     Regarding point No.1: In the case on hand,

accused is known to the complainant.               There is a clear

admission in the cross-examination of accused that he had

purchased the coffee in the year 2008 and towards

payment of the value of the coffee, he has paid the

amount in cash, but accused failed to return the cheques

which was given as security.            If it is so, soon after the
                               16

receipt of notice or at least when the accused has

appeared before the Court and engaged the services of an

Advocate, should have taken some positive action against

the complainant for misuse of the cheque. But, no such

action has been taken by the accused.


     35.    Admittedly, cheques belongs to the accused

and signature found therein is that of the accused.

Cheques are dishonored for want of 'Funds insufficient'.

Therefore, based on the documentary evidence placed on

record by the complainant, the learned Trial Magistrate

was justified in raising the presumption under Section 139

of Negotiable Instruments Act.


     36.    No doubt it is a rebuttable presumption.   In

order to rebut the presumption, the stand taken by the

accused    is that   the   cheques were   misused by the

complainant.


     37.    In the absence of any positive action on the

part of the accused for the alleged misuse, the learned
                             17

Trial Magistrate was of the considered opinion that the

theory of misuse not established by placing cogent

evidence on record.


     38.   Cheques amount is in sum of Rs.29,42,800/-

and Rs.57,749,76/- in both the cases. No normal prudent

person would keep quiet if cheques are misused that too in

a huge amount for Rs.29,42,800/- and Rs.57,749,76/-.

Moreover, accused is a business man.         He knew the

consequences of issuance of cheque and misuse thereof.

Therefore, the defence raised by the accused was thus not

established by placing cogent evidence on record.


     39.   Yet another point that the counsel for accused

has urged before this Court to assail the impugned order is

the improper service of notice, resulting in vitiating the

trial as taking of cognizance was impermissible.


     40.   In that regard, learned counsel for the revision

petitioner placed reliance on provisions of Section 138(b)

of Negotiable Instruments Act.
                                  18

      41.     In the case on hand, the legal notice was sent

to the accused through registered post acknowledgement

due (RPAD).         D.W.1 has admitted that the address

mentioned in the cover is that of his address. Notice was

also sent through courier service.


      42.     On careful perusal of the returned RPAD cover

it is seen that the postman has endorsed that the

addressee did not claim the notice.


      43.     In the case of K. Bhaskaran v. Sankaran

Vaidhyan Balan reported in (1999) 7 SCC 510, the

Hon'ble Apex Court has held as under:

    17.       The more important point to be decided in this
    case is whether the cause of action has arisen at all as
    the notice sent by the complainant to the accused was
    returned as "unclaimed". The conditions pertaining to
    the notice to be given to the drawer, have been
    formulated and incorporated in clauses (b) to (c) of
    the proviso to Section 138 of the Act. The said clauses
    are extracted below:

            "(b) the payee or the holder in due course of
            the cheque, as the case may be, makes a
            demand for the payment of the said amount
                            19

      of money by giving a notice in writing, to
      the drawer of the cheque, within fifteen
      days of the receipt of information by him
      from the bank regarding the return of the
      cheque as unpaid; and

      (c) the drawer of such cheque fails to make
      the payment of the said amount of money
      to the payee or as the case may be, to the
      holder in due course of the cheque within
      fifteen days of the receipt of the said
      notice."

23.     Here the notice is returned as unclaimed and
not as refused. Will there be any significant difference
between the two so far as the presumption of service
is concerned? In this connection a reference to Section
27 of the General Clauses Act will be useful. The
section reads thus:

      "27. Meaning of service by post.--Where
      any Central Act or Regulation made after
      the commencement of this Act authorises or
      requires any document to be served by
      post, whether the expression 'serve' or
      either of the expressions 'give' or 'send' or
      any other expression is used, then, unless a
      different intention appears, the service shall
      be deemed to be effected by properly
      addressing,   pre-paying   and   posting   by
                            20

      registered post, a letter containing the
      document,   and   unless      the   contrary   is
      proved, to have been effected at the time at
      which the letter would be delivered in the
      ordinary course of post."

24.     No doubt Section 138 of the Act does not
require that the notice should be given only by "post".
Nonetheless the principle incorporated in Section 27
(quoted above) can profitably be imported in a case
where the sender has despatched the notice by post
with the correct address written on it. Then it can be
deemed to have been served on the sendee unless he
proves that it was not really served and that he was
not responsible for such non-service. Any other
interpretation can lead to a very tenuous position as
the drawer of the cheque who is liable to pay the
amount would resort to the strategy of subterfuge by
successfully avoiding the notice.

25.     Thus, when a notice is returned by the sendee
as unclaimed such date would be the commencing
date in reckoning the period of 15 days contemplated
in clause (c) to the proviso of Section 138 of the Act.
Of course such reckoning would be without prejudice
to the right of the drawer of the cheque to show that
he had no knowledge that the notice was brought to
his address. In the present case the accused did not
                                 21

    even attempt to discharge the burden to rebut the
    aforesaid presumption.

     44.     Likewise, in the case of V. Raja Kumari v. P.

Subbarama Naidu, reported in (2004) 8 SCC 774,

wherein the Hon'ble Apex Court has held as under:

      "8.    On the part of the payee he has to make a
    demand by "giving a notice" in writing. If that was the
    only requirement to complete the offence on the
    failure of the drawer to pay the cheque amount within
    15 days from the date of such "giving", the travails of
    the prosecution would have been very much lessened.
    But the legislature says that failure on the part of the
    drawer to pay the amount should be within 15 days
    "of the receipt" of the said notice. It is, therefore,
    clear that "giving notice" in the context is not the
    same as receipt of notice. Giving is a process of which
    receipt is the accomplishment. It is for the payee to
    perform the former process by sending the notice to
    the drawer at the correct address.

    9.      In Black's Law Dictionary "giving of notice" is
    distinguished from receiving of the notice (vide p.
    621):

           "A person notifies or gives notice to another
           by taking such steps as may be reasonably
           required to inform the other in the ordinary
           course, whether or not such other actually
           comes to know of it." A person "receives" a
           notice when it is duly delivered to him or at
           the place of his business."

    10.    If a strict interpretation is given that the
    drawer should have actually received the notice for the
                           22

period of 15 days to start running no matter that the
payee sent the notice on the correct address, a
trickster cheque drawer would get the premium to
avoid receiving the notice by different strategies and
he could escape from the legal consequences of
Section 138 of the Act. It must be borne in mind that
the court should not adopt an interpretation which
helps a dishonest evader, and clips an honest payee
as that would defeat the very legislative measure.

14.     No doubt Section 138 of the Act does not
require that the notice should be given only by "post".
Nonetheless the principle incorporated in Section 27
(quoted above) can profitably be imported in a case
where the sender has dispatched the notice by post
with the correct address written on it. Then it can be
deemed to have been served on the sendee unless he
proves that it was not really served and that he was
not responsible for such non-service. Any other
interpretation can lead to a very tenuous position as
the drawer of the cheque who is liable to pay the
amount would resort to the strategy of subterfuge by
successfully avoiding the notice.

18.     In Madhu v. Omega Pipes Ltd. [(1994) 1 An LT
(Cri) 603 (Ker)] the scope and ambit of Section 138
clauses (b) and (c) of the Act were noted by the
Kerala High Court and Justice K.T. Thomas (as His
Lordship then was) observed as follows : (An LT p.
606, para 7)

     "[I]n clause (c) of the proviso the drawer of
     the cheque is given fifteen days from the
     date 'of receipt of the said notice' for
     making     payment.     This    affords  clear
     indication that 'giving notice' in the context
     is not the same as receipt of notice. Giving
     is the process of which receipt is the
                                  23

           accomplishment. The payee has to perform
           the former process by sending the notice to
           the drawer in his correct address. If receipt
           or even tender of notice is indispensable for
           giving the notice in the context envisaged in
           clause (b) an evader would successfully
           keep the postal article at bay at least till the
           period of fifteen days expires. Law shall not
           help the wrongdoer to take advantage of his
           tactics. Hence the realistic interpretation for
           the expression 'giving notice' in the present
           context is that, if the payee has dispatched
           notice in the correct address of the drawer
           reasonably ahead of the expiry of fifteen
           days, it can be regarded that he made the
           demand by giving notice within the statutory
           period. Any other interpretation is likely to
           frustrate the purpose for providing such a
           notice."

     45.     In yet another judgment of the Hon'ble Apex

Court in the case of N. Parameswaran Unni v. G.

Kannan, reported in (2017) 5 SCC 737, it has held as

under:

    11.      A bare reading of Section 138 of the NI Act
    indicates that the purport of Section 138 is to prevent
    and punish the dishonest drawers of cheques who
    evade and avoid their liability. As explained in clause
    (b) of the proviso, the payee or the holder of the
    cheque in due course is necessarily required to serve a
    written notice on the drawer of the cheque within
    fifteen days from the date of intimation received from
    the bank about dishonour.
                               24

    12.      It is explicitly made clear under clause (c) of
    Section 138 of the NI Act, that this gives an
    opportunity to a drawer of the cheque to make
    payment within fifteen days of receipt of such notice
    sent by the drawee. It is manifest that the object of
    providing clause (c) is to avoid unnecessary hardship.
    Even if the drawer has failed to make payment within
    fifteen days of receipt of such notice as provided under
    clause (c), the drawer shall be deemed to have
    committed an offence under the Act and thereafter the
    drawee would be competent to file complaint against
    the drawer by following the procedure prescribed
    under Section 142 of the Act.

    13.     It is clear from Section 27 of the General
    Clauses Act, 1897 and Section 114 of the Evidence
    Act, 1872, that once notice is sent by registered post
    by correctly addressing to the drawer of the cheque,
    the service of notice is deemed to have been effected.
    Then requirements under proviso (b) of Section 138
    stand complied, if notice is sent in the prescribed
    manner. However, the drawer is at liberty to rebut this
    presumption.



     46.   In the case of       Central Bank of India v.

Saxons Farms, reported in (1999) 8 SCC 221, the

Hon'ble Apex Court has held as under:

    8.     The object of notice is to give a chance to the
    drawer of the cheque to rectify his omission and also
    to protect an honest drawer. Service of notice of
    demand in clause (b) of the proviso to Section 138 is a
    condition precedent for filing a complaint under
                                     25

    Section 138 of the Act. In the present appeals there is
    no dispute that notices were in writing and these were
    sent within fifteen days of receipt of information by
    the appellant Bank regarding return of cheques as
    unpaid. Therefore, the only question to be examined is
    whether in the notice there was a demand for
    payment.

        47.   On careful perusal of the above principles of

law it is crystal clear that when once the notice is issued to

the accused at his last known address through RPAD, it

should be presumed that notice is duly issued and served

under Section 27 of the General Clauses Act, as he has no

hand in service of the notice or otherwise.


        48.   In the case on hand, since the notice is

returned      with        an   endorsement       'not   claimed',    the

contentions urged on behalf of the revision petitioner that

there    is   no     proper       service   of    notice    cannot   be

countenanced         in    law.     Answers      obtained    in   cross-

examination with regard to service of notice through

courier service thus becomes insignificant.
                                    26

        49.     As such, this Court does not find any legal

infirmity or perversity in the order of conviction recorded

by the learned Trial Judge, confirmed by the First Appellate

Court    so     as   to   interfere     in   the   limited    revisional

jurisdiction.



        50.     Thereore,    the   conviction      order     is   to   be

maintained.       Accordingly, point No.1 is answered in the

negative.



        51.     Regarding Point No.2: Having held thus, it is

seen that the learned Trial Magistrate and learned Judge in

the First Appellate Court have imposed sum of Rs.10,000/-

each in both cases towards defraying expenses of the

State. Same cannot be countenanced in law as lis is privy

to the parties and no State machinery is involved. To that

extent matter requires interference. Hence, point No.2 is

answered partly in the affirmative.
                                      27

      52.        Regarding point No.3: In view of findings on

point Nos.1 and 2, following order is passed:


                                 ORDER
(i) Criminal revision petition No.1021/2021 and
Criminal revision petition No.1058/2021 are
allowed in part.
(ii) While maintaining the conviction of the
accused for the offence punishable under
Section 138 of Negotiable Instruments Act, fine
amount of Rs.10,000/- each in both
C.C.No.188/2019 and C.C.No.187/2019,
imposed by the learned Trial Magistrate,
confirmed by the First Appellate Court towards
defraying expenses of the State is hereby set
aside.