IMPORTANT POINT
The complainant is obliged to prove that a statutory notice under Section 138(b), NIA was served upon the accused prior to filing of the complaint.

Kuldip Singh, J. — The complainant is in appeal against the judgment dated 29.9.1999 passed by learned Additional Chief Judicial Magistrate, Kandaghat, Camp at Solan in Cr. Case No. 15/4 of 97/1992, acquitting the respondent under Section 138 of the Negotiable Instruments Act, 1881 (for short ‘Act’).

2. The brief facts are that the complainant company filed a complaint under Section 138 read with Section 142 of the Act against respondent, alleging therein that respondent is proprietor of firm M/s Jagavtar & Company, Ujjain, District Kangra. The respondent purchased Golden Eagle Beer from the complainant against invoice No. 3000 dated 9.4.1992 and issued two cheques bearing Nos. 0047775 and 0047776, both dated 10.4.1992 for Rs. 1,03,148 each drawn on Union Bank of India, Kangra towards the payment of price of goods purchased by the respondent. The cheques on presentation by the complainant were not encashed and were received back on 18.5.1992 with the remarks “Exceeds arrangement”. The complainant got issued a notice dated 22.5.1992 to the respondent with the request to make payment of Rs. 2,06,296, the amount of both the cheques within a period of 15 days from the date of notice. The notice was received by the respondent on 28.5.1992 but respondent failed to make the payment of the dishonoured cheques. On these grounds the complainant filed the complaint.

3. The learned Additional Chief Judicial Magistrate issued process to the respondent for facing trial for offence punishable under Section 138 of the Act. The notice of accusation was put to the respondent on 9.9.1996 under Section 138 of the Act. The complainant examined CW1 H.N. Handa, Company Secretary, CW2 D.C. Kapil, Assistant Manager P.N.B., Solan, CW3 B.L. Negi, Accountant Union Bank of India, Kangra. Surinder Singh was examined under Section 313 Cr.P.C. The respondent examined DW1 Surinder Singh. The learned Additional Chief Judicial Magistrate acquitted the respondent on 29.9.1999. The complainant is now in appeal.

4. I have heard the learned counsel for the parties and gone through the record.

5. The learned counsel for the complainant-appellant has submitted that learned Additional Chief Judicial Magistrate has not properly appreciated the oral and documentary evidence on record. The complainant has proved the case against the respondent. The respondent has been wrongly acquitted. The learned counsel for the respondent has supported the impugned judgment of acquittal. He has submitted that the complaint was filed against the proprietor of M/s Jagavtar and Company, Ujjain, District Kangra but in the complaint Proprietor of M/s Jagavtar and Company has not been disclosed. The respondent has committed no offence on the basis of material on record. The learned additional Chief Judicial Magistrate has taken a possible view and therefore, judgment of acquittal may not be disturbed.

6. CW1 H.N. Handa has stated that on 9.4.1992 vide invoice No. 300 Beer amounting to Rs. 2,06,296 was purchased by the respondent and two cheques Ex P1 and Ex P 2 amounting to Rs. 1,03,148 each were issued by respondent, Ex P6 is the carbon copy of the voucher vide which beer was sold to the respondent. These cheques were presented the banker of the complainant, but were not encashed. A notice Ex P 7 was got issued to respondent and was sent to respondent by Registered Post acknowledgment due vide postal receipt Ex P 9. The notice was received by the respondent by AD card Ex P 8. The payment was not made by the respondent even after the receipt of the notice. In cross-examination he has shown his ignorance who filled the date in cheques Ex P1 and Ex P2. He has admitted that cheques Ex P1 and Ex P2 were filled in after the invoice. He could not tell whether signatures on Ex P1, Ex P2 and on acknowledgement Ex P 8 are different. He denied the suggestion that notice Ex P 7 was not received by the accused. He did not deny the suggestion that on acknowledgment Ex P 8 the signatures are f