The judgment established the legal principles related to the presumption of discharge of debt through a cheque, deemed service of demand notice, and the penal consequences for unscrupulous drawers of cheques.

1. Appellant herein was original complainant. His complaint against the respondent (accused) was for the offence punishable under Section 138 of the Negotiable Instruments Act. The trial ended in judgment and order of acquittal of the accused. The appellant questions validity and legality thereof by this appeal.

2. The case of complainant is that complainant had thick friendship with the accused since more than three years prior to the complaint. Accused and his wife Kanchan who intended to purchase plot, had approached complainant as they were in need of cash in September 2003 and complainant had arranged sum of Rs. 1,09,000/- by withdrawing Rs. 1,08,750/- from his savings bank account from Bank of Baroda and his pocket money.

3. The cheque drawn on Bank of Maharashtra issued post dated by the accused was presented on 22.5.2004 in the Bank of Baroda, South Ambazari Road Branch, Laxmi Nagar, Nagpur. However, cheque was returned dishonoured on 9.6.2004 with remark “stop payment”. Thus, accused having failed to repay, Demand Notice by RPAD was sent on 12.6.2004 and on 19.6.2004. The accused managed to have those registered demand notices returned and deemed to have been served with notice which were sent by RPAD as also under postal certificate on correct address of the accused. The accused having failed to repay the amount despite demand made by notice returned with postal remarks “.......................................................................................................... .........................................................................................................”

The notice sent under postal certificate on correct address was deemed to have been served on and received by the accused. The complaint was filed on 23.7.2004. After verification on 2.8.2004, the process was issued on 9.8.2004.

4. According to complainant, as counter-blast to the complaint filed, wife of the accused had lodged complaint about missing of cheques kept in her purse on 10.4.2004. Crime No. 446/04 at Wardha Police Station was registered on 30.12.2004. On 14.10.2005 police reported it as “B” summary (false case).

5. Accused denied his liability in defence alleging that cheque in dispute along with other three cheques were lost by his wife and for that reason, intimation was given to the Bank to stop payment of cheque in dispute along with other cheques. The fact that cheque in dispute drawn on savings bank account no. 22433 with Bank of Maharashtra was signed by the accused is not disputed.

6. While complainant deposed in support of complaint, the accused examined himself and his wife.

7. Learned Magistrate, after considering material produced, was of the view that complainant did not prove that cheque bearing no. 199231 for Rs. 1,09,000/- dated 22.5.2004 was issued by the accused in discharge of legal liability as also that demand notice dated 10.6.2004 was not duly served upon accused and therefore, by impugned judgment, acquitted the accused of the offence under Section 138 of the Negotiable Instruments Act.

8. The main argument of learned Advocate for complainant assailing impugned judgment of acquittal is that the cheque in question was issued signed by the accused towards repayment of sum of Rs. 1,09,000/- received by accused and his wife and that complainant had tendered sufficient legal evidence to prove his case. The case posed as counter-blast to the complainant’s case was found and reported “B” summary – false case and attained finality as such as there was no counter evidence from the accused to substantiate his defence. Further, according to the complainant’s advocate, learned Magistrate failed to appreciate the “deemed service” of demand notice in the facts and circumstances of the case.

9. Learned Advocate for respondent advanced submissions to support impugned judgment of acquittal.

10. It is contended that notice of demand was not served or received by the respondent. Further, according to learned