IMPORTANT POINT
Dishonour of cheque – Presumption cannot be rebutted unless contrary is proved by accused.

ORDER (ORAL)

The present application is filed by the applicant -original complainant seeking leave to appeal under Section 378(4) of the Code of Criminal Procedure challenging the impugned judgment and order of acquittal dated 01.09.2022 passed by the learned 4th Additional Judicial Magistrate, First Class, Bharuch in Criminal Case No.3344 of 2020. By the said judgment and order, the learned Magistrate has proceeded to record the order of acquittal of present respondent no.2- original accused for the offence punishable under Section 138 of the Negotiable Instruments Act, 1881 (hereinafter referred to as the “NI Act”).

2. When the matter was taken up for admission hearing, the Court having noticed the nature of dispute wherein it had transpired that the son of original accused is married with the daughter of the complainant and parties are facing various litigation, the Court had referred the matter to the Mediation Center to explore the possibility of settlement. Learned advocate Mr. MM Saiyed had appeared for the applicant and learned advocate Mr. Ramnadan Singh had appeared for the respondent no.2- original accused. Learned advocates for the respective parties have made efforts to settle the dispute. However, the mediation was reported to be unsuccessful. In such circumstances, the matter was taken up for admission hearing.

3. The learned advocates for the respective parties were extensively heard and were permitted to place on record the written submission along with authorities relied upon. Such written submission with authorities have been placed on record by both the sides. Having heard the learned advocates for the respective parties and having perused the impugned judgment and order and also written submission which has subsequently come on record, the Court at the stage of grant of leave to appeal has examined to the extent as to whether an arguable case is made out to grant leave and admit the appeal.

4. Considering the arguments made by the learned advocates for the respective parties, essentially in my opinion, following questions fall for consideration of this Court:

I. Whether the notice issued upon accused under Section 138(b) of the NI Act has been complied with ?

II. Whether there was any legal debt outstanding in favour of the complainant in order to attract the offence under Section 138 of the NI Act against the accused ?

5. So far as first issue is concerned, indisputably the notice under Section 138 of the NI Act was addressed at the shop of respondent no.2- original accused. The defence is raised by the accused that the complainant has sent such notice when she was not in the country and in fact no actual service of notice has been effected upon the accused. The learned Magistrate upon appreciation of the evidence of the complainant has noticed that she has admitted that while the notice was sent to the accused she was not in India and hence notice was addressed at the shop i.e. “Sheetal Sweets” and not at the residential address which the complainant was aware. The learned Magistrate has taken into consideration the aforesaid fact and draw inference against the complainant and arrived at a conclusion that mandatory provisions of the Act has not been fulfilled by the complainant. Mr. Saiyed, learned advocate for the applicant has placed on record the relevant documents including legal notice at Exh.13, registered post AD slip at Exh.14 and track report of the postal department confirming the service of notice upon the accused at Exh.15. Mr. Saiyed has relied upon the decision of the Hon’ble Supreme Court in the case of CC Alavi Haji vs. Palapetty Muhammed & Anr reported in 2007(2) GLH 512 and has submitted that service of notice is deemed to have been effected at the time at which the letter would have been delivered in the ordinary course of business. He, therefore, urge this Court that the learned Magistrate has committed error by not extending the presumption available under Section 27 of the