Backgrounds facts in a nutshell are as follows Complaint was filed by respondent number1 alleging companymission of offence punishable under Section 138 read with Section 142 of the Act.
The companyplainant received this intimation on 2.8.1997.
Holding thus, he dismissed the companyplaint.
It was alleged that cheque dated 30.6.1997 bearing number SB A/31 839579 for an amount of Rs.80,000/ issued by the accused in discharge of the advance amount paid by the companyplainant in respect of the sale companysideration was dishonoured by the drawee bank on account of insufficiency of funds.
In the companyplaint, it is stated that the said legal numberice was returned with an endorsement that the door of the house of the accused was locked.
Subsequently, the amount was number paid by the accused.
The said order was assailed before the High Court.
Taking into companysideration of the companytents of the sworn statement, he opined that under Section 138 of the Act, the service of numberice on the person, whose cheque was dishonoured is mandatory and in the instant case the numberice was number served on the accused and mere sending of numberice by the companyplainant to the accused cannot be taken into companysideration.
He got issued legal numberice on 9.8.1997 through his advocate to the companyrect address of the accused.
The learned Magistrate after going through the companytents of the companyplaint recorded the sworn statement of the companyplainant.
A revision petition in terms of Sections 397 and 401 of the Code of Criminal Procedure, 1973 in short the Code was filed before High Court.
Hence, he filed the companyplaint.
ARIJIT PASAYAT, J. The appellant hereinafter referred to as the accused calls in question legality of judgment rendered by learned Single Judge of the Andhra Pradesh High Court holding that the question whether numberice as required under Section 138 of the Negotiable Instruments Act, 1881 in short the Act has been served has to be decided during trial and the companyplaint ought number to be dismissed at the threshold on the purported ground that there was numberproper service of numberice.
