JUDGMENT :

This revision application has been preferred for setting aside the judgment dated 02.05.2018/03.05.2018 passed by learned 2nd Additional District & Sessions Judge, Muzaffarpur in Cr. Appeal No. 87/2017 whereby and whereunder the learned Judge has been pleased to dismiss the said criminal appeal and refused to interfere with the judgment of conviction and sentence dated 25.08.2017 passed by learned Additional Chief Judicial Magistrate (East), Muzaffarpur in complaint case no. C-1557/12. By the impugned judgment and order the petitioner has been convicted under Section 138 of the Negotiable Instrument Act (hereinafter referred to as the “N.I. Act”) and the learned court has directed the petitioner to pay double of the original amount of the cheque (3,47,000) and to undergo one year simple imprisonment. The period gone under the judicial custody will be set off under Section 428 of the Cr.P.C.

Brief facts of the case

2. The complainant–opposite party no. 2 filed a complaint case on 11.06.2012 for the offences alleged under Sections 403, 406, 420 & 120B I.P.C. and 138 of the N.I. Act. The learned Magistrate, however vide his order dated 28.01.2014 took cognizance only under Section 138 of the N.I. Act.

(i) According to the complainant the accused-petitioner is running a nursing home namely, Jivandeep Clinic. He had taken medicines from the complainant who is running Utsav Drug Enterprises at Imlichatti. It is alleged that the medicines were purchased on credit basis for a sum of Rs.3,47,180/- on 08.10.2011. The complainant claimed that the accused-petitioner, in order to pay the said outstanding amount issued a cheque of Rs.3,47,000/- on 25.04.2012 in favour of the complainant-opposite party no. 2 but on presentation of the cheque the same stood dishonoured for want of sufficient funds in the account of the accused-petitioner. The complainant further claimed that he sent a legal notice to the accused-petitioner but the payment was not made.

(ii) In this case charge was framed under Section 138 of the N.I. Act and the prosecution examined three witnesses. C.W.1 is the complainant himself whereas C.W.2 and C.W.3 are the medical representative and employee of the medicine company. The accused-petitioner was examined under Section 313 Cr.P.C. in which he pleaded innocence and denied the allegations. No defence witness has been produced.

(iii) The learned Magistrate examined the evidences on the record and held the petitioner guilty for the offence under Section 138 of the N.I. Act.

(iv) In the appellate court a plea was taken on behalf of the accused-petitioner that no legal notice was sent demanding the amount under the cheque. In this connection, the attention of the appellate court was drawn towards paragraph ‘11’ of the cross examination of the complainant-opposite party no. 2 wherein the complainant has admitted that he had not sent notice for payment. The appellate court held that the complainant was not asked as to whether he had sent legal notice or not. The question put to him was as to whether notice for payment has been sent or not which he replied by saying that he had not sent any notice for payment. The appellate court observed that the copy of legal notice and the postal receipt are available on the record. Those were not exhibited but the learned court is taking judicial notice of the same and is being considered. The appellate court, therefore, refused to interfere with the judgment of the learned trial court.

3. In this Court, learned counsel for the accused-petitioner has reiterated the plea of non-service of notice. The following two grounds have been urged :

(1) that in this case the complainant did not serve any demand notice calling upon the petitioner to make payment of the amount under the dishonoured cheque, hence, the essential requirement to maintain a complaint is missing; and

(2) that the petitioner being an accused has discharged the initial burden by preponderance of possibility that the cheque in ques