The Karnataka HC in, M NAGAPPA v. MOHAMAD ASLAM SAVANUR, said that under Section 138 of Negotiable Instrument Act, 1881, there is no requirement to serve notice under certificate of posting.
Facts
The appellant gave a loan to the respondent-accused for 1.5 lakh. The respondent failed to pay the amount in a reasonable time, issued three cheques for Rs. 50,000 each. Cheques were present and were dishonored. A legal notice was sent but the letter was returned stating it was ‘not claimed’. A private complaint under Section 200 Cr.P.C. for the offense punishable under Section 138 N.I.Act. The trial court acquitted the person by stating that the appellant ought to have issued a notice under Certificate of Posting (COP) in addition to the notice sending through Registered Post with Acknowledgment Due (RPAD). Further, it was observed that there is no presumption of proper service of notice to the respondent. The appellant thus approached the High court.
Contention of Appellant
It was contended that the rejection of the complaint is erroneous since the trial Court is dismissing the complaint on the reason that notice was not sent under the certificate of posting. The documentary evidence showed that legal notice was sent through registered post.
Contention of Respondent
It was stated that there was ample evidence on record to show that there was a transaction of insurance policy and respondent has issued a cheque towards payment of premium in respect of the policy taken by him that it is also the contention of respondent there was a chit transaction between the accused and the complainant.
Court’s Observation
The Court primarily had to deal with the question as to whether the trial court was right in acquiting the person. The Court perused Section 94 of NI Act. Although all the other findings of the court were right but the reason of dismissal of complaint was something erroneous. In view of the ratio laid down in the aforesaid decisions, the court said, there is proper service of notice and there was no requirement to serve the notice under certificate of posting. The accused, the court stated has failed to rebut the presumption by placing cogent and convincing evidence. Therefore, the Court set aside the decision of the trial court.
Case Details
CRIMINAL APPEAL NO.838 OF 2011 (A)
Coram- THE HON'BLE MR.JUSTICE ASHOK G. NIJAGANNAVAR
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