IMPORTANT POINT
Where demand notice was not received and was returned “unclaimed”, presumption of due service would be available in favour of complainant.

A.N. Jindal, J.— Assailed in this petition is the judgment dated 18.10.1.994 passed by Addl. Sessions Judge, Patiala dismissing the appeal of the petitioner against the judgment dated 3.8.1994 passed by Judicial Magistrate 1st Class Patiala convicting the petitioner under Section 138 of the Negotiable Instruments Act and sentencing him to undergo RI for six months and to pay a fine of Rs.1,000.

2. The facts essential for the disposal of the present petition are that Rajpat Yadav (hereinafter referred to as the ‘complainant’) was employed in the Escorts Private Ltd. (Bahadurgarh) and was power of attorney holder of Avodh Narain, Chander Mohan, Puran Singh, Gurdev Singh, Niranjan Singh, Kirpal Singh and Rameshwar Parshad. In the month of Jan. 1989, the petitioner claiming himself to be the agent of Uday Savings and General Investment Ltd. Regd.No.1559, Sector 18D, Chandigarh approached the complainant to invest some amount in his company for which he was ready to pay handsome interest with an insurance cover. He also assured that he will be liable against the loss in case company goes missing or its whereabouts are not known. After making the aforesaid assurance, the respondent Rajpat Yadav paid a sum of Rs.70,000 but later on he came to know that the petitioner had not deposited the said amount with the company. His request to return the amount fell to deaf ears.

On persistent demands, petitioner handed over cheques No.0088707 and No.0088706 dated 31.1.1991 and 10.2.1991 respectively but on tendering the cheque with the drawee Bank, the same were returned with the remarks “Payment Stopped By Drawer”. The said reports were followed by a notice dated 27.2.1991 but to no response. Hence a complaint was filed.

3. After the preliminary evidence, the petitioner was summoned. The petitioner pleaded denial to a notice under Section 138 of Negotiable Instruments Act and claimed trial. Ultimately, the complaint ended in conviction. The appeal was also dismissed. Hence this petition.

4. The issuance of the cheques have not been denied by the petitioner but in his statement under Section 313 Cr.P.C., he submitted that the cheques were obtained from him by use of force and under undue influence for which he had lodged a complaint with the police. Besides the statement made by the petitioner, ample evidence has been brought on record to prove the issuance of the cheque as well as dishonouring of the same. Power of attorney in the name of the complainant Exhibit P4 has been duly proved. The payment of loan advanced by the complainant attorney has also been established.

5. From the testimony of S. K. Dudeja, Head Cashier of the Union Bank of India, Ambala Cantt, Rajinder Kaur, Clerk of Union Bank of India, Main Branch, Patiala, it is apparent that both the cheques were not honoured. Statement of account Ex.P3 of the petitioner establishes that on 31.1.1991 there was a balance of Rs.875.58 and on 10.2.1991 Rs.99,58 in his account.

6. Thus no doubt is left in my mind to hold that the accused knowing fully well that the same shall not be honoured intentionally issued the same. No adequate money to honour the cheques was in the account of the petitioner as such these were bounced for want of funds. The petitioner has not set up the case that the payment was stopped on account of some dispute between the parties but it appears that the petitioner in order to save himself from the criminal action, which may arise from the dishonouring of the cheque, he got this report ‘Payment stopped by Drawer.’ The cheques returned under the given circumstances of the case when the amount was already deficient in the account at the time when the same were issued or when these were tendered would account to dishonour for want of payment.

7. Regarding the other argument for non-service of notice upon him it would be suffice to say that as per the records notice was sent to him and he did not receive and return it as ‘unclaimed’. Thus presumption would be of