ORDER

Instant appeal has been filed in accordance with Section 376(4) of the CrPC after having special leave granted by this Court vide order dated 22.11.2010 under SLA No. 14/2018. It is needless to say that complainant is the appellant and the judgment impugned is dated 08.02.2018 passed by ACJM-1st, Danapur in Complaint Case No. 953/2014, Trial No. 20/2015 (Deepak Kumar vs. Anil Kumar Gupta) acquitting Respondent No.2.

2. At the time of admission, the judgment impugned has been gone through and perceiving the finding of the learned lower court under para-4 as well as 9 of the judgment, the Respondent No.2 has been noticed to the effect as to why not the judgment impugned be set aside, waiving the rigour so laid down under Section 390 of the CrPC perceiving the nature of offence to be under Section 138 of the NI Act, summons triable, bailable one, whereupon, there has been appearance of Respondent No.2. During midst thereof, lower court record has been called. That means to say, at the stage of admission, the appeal is being disposed of in its finality.

3. Heard the parties.

4. It is the case of the appellant/complainant that he as well as Respondent No.2/accused are bosom friends and in the aforesaid background, in the first week of April 2013, Respondent No.2 had asked for friendly loan on an undertaking that within four months the same would be paid whereupon he had given Rs. 23,76,000/- on 15.04.2013 on the aforesaid understanding. Even after expiry of the aforesaid period when money was not returned back by the Respondent No.2/accused, he demanded and then, the Respondent No.2/ accused handed over two cheques of Punjab National Bank each containing 11,88,000/- on 11.07.2014 and for getting the same credited to his account, deposited in his account standing at Axis Bank but the aforesaid two cheques got dishnoured with a remark that signature is not tallying, and the Bank had communicated the said information on 15.07.2014. Then thereafter, registered notice was served on 23.07.2014, even then, the amount has not been paid, consequent thereupon, the complaint petition has been filed on 12.08.2014.

5. The complaint was filed on 12.08.2014 whereupon after examining the complainant on SA, an inquiry in terms of Section 202 CrPC commenced and concluded by an order dated 24.06.2015 whereby the learned lower court had summoned the Respondent No.2 to face trial for an offence punishable under Section 138 NI Act. Accordingly, after appearance, the trial commenced and concluded in a manner, subject matter of instant appeal.

6. It has been submitted at the end of learned counsel for the appellant that the finding recorded by the learned lower court is against the statutory provisions of law whereupon, could not sustain. In order to justify the same, it has been submitted that from para-4 of the judgment impugned, it is evident that there happens to be an admission at the end of Respondent No.2/accused regarding issuance of two cheques in favour of appellant, then in that event, the court would have drawn preemption against the Respondent No.2/accused in accordance with Section 139 of the NI Act, though rebuttable and further the learned lower court should have also considered that Respondent No.2/accused failed to discharge his onus by way of rebuttal.

7. It has also been submitted that from para-9 of the judgment, it is evident that observation so made by the learned lower court was contrary to Section 139 of the NI Act and in likewise manner, basing upon the principle laid down by the Kerala High Court in Cr. Appeal No. 560/2007 that there should be positive evidence regarding receipt of the notice, happens to be contrary to the principle laid down by the Apex Court wherein it has been observed that there will be presumption in case of notice has been sent through registered post. Apart from this, para-8 as is evident, happens to be contrary to the own admission of the Respondent No.2/accused. In the aforesaid backdrop, it has been sub