1. None appears for the Opposite Party when the matter is called. There was no appearance on behalf of the Opposite Party on the previous dates i.e. 22.10.2025, 25.11.2025 & 09.12.2025. Hence, this Court proceeds to hear the matter on merits.

2. Heard learned counsel for the Petitioner.

3. It is submitted by the learned counsel for the Petitioner referring to the cross-examination of P.W.1- the complainant that he never received the demand notice. Paragraph-31 of the cross-examination which is germane is extracted hereunder:-

                   “It is a fact that I have not produced any document to show that the accused received the demand notice.”

                   The said demand notice is extracted hereunder for convenience of ready reference;

                   “IMAGE”

4. The attention of this Court is also drawn to Ext.4-postal receipt of demand notice in question. In this context Paragraph-9 of the examination in chief filed by way of affidavit is culled out hereunder:-

                   “Ext.P./P.W.1 is the postal receipt of the demand notice sent the accused bearing no.R09589474551N/ 22.10.2019.”

5. On perusal of Ext.4, which is extracted hereunder, it is seen that item in question was delivered to one “Mukunda Patra” and referring to such Ext.4, the learned Trial Court came to the conclusion that notice was duly served.

                   “IMAGE”

6. Referring to the relevant provision of the Negotiable Instruments Act, 1881, more particularly Section 138

(138. Dishonour of cheque for insufficiency, etc., of funds in the account.— Where any cheque drawn by a person on an account maintained by him with a banker for payment of any amount of money to another person from out of that account for the discharge, in whole or in part, of any debt or other liability, is returned by the bank unpaid, either because of the amount of money standing to the credit of that account is insufficient to honour the cheque or that it exceeds the amount arranged to be paid from that account by an agreement made with that bank, such person shall be deemed to have committed an offence and shall, without prejudice to any other provision of this Act, be punished with imprisonment for a term which may extend to two years, or with fine which may extend to twice the amount of the cheque, or with both:

                   Provided that nothing contained in this section shall apply unless—

                   (a) the cheque has been presented to the bank within a period of six months from the date on which it is drawn or within the period of its validity, whichever is earlier;

                   (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 of money by giving a notice in writing, to the drawer of the cheque, within thirty 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.

                   (Emphasized),

it is submitted by the learned counsel for the Petitioner that service of notice is not in consonance with the statutory provision and the order passed by the learned Trial Court holding the Petitioner guilty of committing the offence under Section 138

                   (138. Dishonour of cheque for insufficiency, etc., of funds in the account.— Where any cheque drawn by a person on an account maintained by him with a banker for payment of any amount of money to another person from out of that account for the discharge, in whole or in part, of any debt or other liability, is returned by the bank unpaid, either because of the amount of money standing to the credit of that account is insufficient to honour the cheque or that it exceeds the amount arranged to be paid from that account by an agreement made with that bank, such person shall be deemed to have committed an offence and shall, without prejudice to any other provision of this Act, be punished with imprisonment for a term which may extend to two years, or with fine which may extend to twice the amount of the cheque, or with both:

                   Provided that nothing contained in this section shall apply unless—

                   (a) the cheque has been presented to the bank within a period of six months from the date on which it is drawn or within the period of its validity, whichever is earlier;

                   (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 of money by giving a notice in writing, to the drawer of the cheque, within thirty 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.

                   (Emphasized)

of Negotiable Instruments Act, 1881 having been passed oblivious of the statutory requirement of service of notice, the same is liable to be set-aside.

7. And, it is his further submission that though such ground was specifically raised before the learned Appellate Court and the learned Appellate Court in fact took cognizance of the same in paragraph-5 of its judgment. The relevant excerpt of the said paragraph is extracted hereunder:-

                   “Further, the appellant / accused has never received any notice from the respondent No.2/complainant as alleged.”

8. And, referring to the judgment of the Appellate Court, it is submitted that notwithstanding the specific stand of the Petitioner that he has not been served with notice and there being no contra evidence to repel such stand, the affirmation of the finding by the learned Sessions Judge has resulted in miscarriage of justice and is the outcome of patent non application of mind. As such, the order being perverse, the same merits interference by this Court in exercise of its revisional jurisdiction.

To fortify his submission, learned counsel for the Petitioner relies on the following judgments:-

                   i) D. Vinod Shivappa vs. Nanda Belliappa(D. Vinod Shivappa v. Nanda Belliappa, (2006) 6 SCC 456)

                   ii) C.C. Alavi Haji vs. Palapetty Muhammed and another(C.C. Alavi Haji v. Palapetty Muhammed, (2007) 6 SCC 555)

                   iii) Shakti Travel & Tours v. State of Bihar(Shakti Travel & Tours v. State of Bihar, (2002) 9 SCC 415)

                   In Shakti Travel & Tours(Supra)4, the Apex Court has held thus;

                   “xxx xxx xxx

                   2. Accused who is the Appellant, assails the order of the High Court refusing to quash the complaint filed under Section 138 of the Negotiable Instruments Act. The only ground on which the learned Counsel for the Appellant prays for quashing of the complaint is that on the assertions made in paragraph 8 of the complaint, it must be held that notice has not been served and, therefore, an application under Section 138 could not have been maintained. Undoubtedly, the accused has a right to pay the money within 15 days from the date of the service of notice and only when it fails to pay, it is open for the complainant to file a case under Section 138 of the Negotiable Instruments Act. That being the position and in the complaint itself having not been mentioned that the notice has been served, on the assertions made in paragraph 8, the complaint itself is not maintainable. We accordingly quash the complaint.

                   Xxx xxx xxx”

The law laid down in D. Vinod Shivappa(Supra)2 and C.C. Alavi Haji(Supra)3 have no application to the case at hand.

9. This Court perused the deposition of P.W.1 as well as the order of the learned Magistrate. On a bare perusal of the same, it is established that notice admittedly was issued to the Petitioner in terms of the Section 138(b)1 of the Negotiable Instruments Act, 1881.

                   9-A. It is borne out from evidence on record that the said notice was not received by the present Petitioner- the accused but by one “Mukunda Patra”.

10. In fact no contra evidence is led to establish that notice is in fact received by the Petitioner.

11. It is seen that the learned Appellate Court though has adverted to the specific ground as urged by the accused-Petitioner that he has not received any notice, while passing the judgment has not even referred to the Ext.4-the notice as adverted to hereinabove.

Since the mandatory statutory prescriptions under Section 138(b)1 of Negotiable Instruments Act, 1881 has not been followed in the case at hand, this Court is persuaded to quash the proceeding.

12. Accordingly, the judgment dtd.18.10.2023 in ICC No.514 of 2019 passed by the J.M.F.C.(T), Berhampur is quashed.

13. Consequentially, the amount deposited during the pendency of the CRLA No.61 of 2023, which is stated to be in deposit with the learned Appellate Court shall be released in favour of the Petitioner on proper identification.

14. The CRLREV is accordingly disposed of.

15. In view of disposal of CRLREV, pending I.As., if any, also stand disposed of.