IMPORTANT POINT
The legal principle established is the need for a liberal interpretation of the provisions related to the service of notice under Section 138 of the NI Act to protect the interests of the payee and prevent dishonest evaders from escaping legal consequences.

ORDER :

1. The present acquittal appeal has been preferred by the appellant/complainant against the judgment of acquittal dated 18.09.2007 passed by the learned JMFC, Raipur (CG) in Criminal Complaint No.179/2006 (Annexure A/1), whereby the respondent has been acquitted of the charges punishable under Section 138 of the Negotiable Instrument Act, 1881.

2. Brief facts of the case are that the appellant and the respondent were known to each other and the respondent had taken loan amounting to Rs.5,25,000/- from the appellant for his business and for which the respondent had issued cheques and when the cheques were presented before the bank for encashment, the same got dishonored, upon which the appellant intimated the respondent about the same but no heed was paid by him and thereafter even legal notice was sent to the respondent on 31.10.2003, but all went in vain, which resulted into filing of a complaint by the appellant before the Trial Court.

3. Before the Trial Court, the appellant/complainant examined himself as CW-1, Rupender Jain as CW-2 and Ashok Gupta as CW-3. On the other hand, the accused examined himself as DW- 1 and Uttpal Bhattacharya as DW-2. The statement of accused was also recorded under Section 313 of CrPC, in which he pleaded not guilty.

4. The learned trial Court after appreciation of oral and documentary evidence available on record acquitted the accused respondent for the offence punishable under Section 138 of the NI Act.

5. Learned counsel for the appellant submits that that the impugned judgment of acquittal is bad in law as well as facts on record. The learned Trial Court taking hyper technical approach on presumption of Section 138(b) of Negotiable Instrument Act 1881 has acquitted the Respondent/Accused from the offence under section 138 of Negotiable Instrument Act 1881. The Respondent/Accused was rightly implicated on this case on the basis of facts, evidence and complaint of Complainant/Appellant. In Complaint the Complainant/Appellant has specifically pleaded that the Respondent/Accused willfully avoided service of Notice. Despite of these the Respondent/Accused accepted that he had issued these cheque in favour of the Complainant/Appellant. The Judgment passed by the learned Trial Court is bad in the eyes of law and deserves to be quashed by this Court, as it has not properly marshaled the evidence of the witnesses and reached in wrong conclusion that notices were not properly served. The Respondent/Accused himself admitted in Par 5 of his deposition as Court answer that I am residing at Ramsagarpara for above 2 and 1/2 years and before that I was residing at Choubey Colony. He further admitted in para 10 of his deposition that his parental house is situated at Garaiband. That applicant/Complainant had sent notice on both the addresses [Exhibit P/1 & P/3] and the Respondent/Accused had not submitted anywhere that these addresses were wrong. Infact he had information that such notices were sent on his both residential addresses but with ill intention, he denied service of Notice. The learned trial Court has reached wrong conclusion that notice has not been served to the Respondent/Accused. Therefore, the impugned judgment of acquittal may kindly be set aside. Reliance has been placed on the judgments rendered by the Hon’ble Supreme Court in the matters of K. Bhaskaran vs Sankaran Vaidhyan Balan and another, reported in (1997) 7 SCC 510 and M/s Sarav Investment & Financial Consultants Pvt. Ltd. and Anr vs Llyods Register of Shipping Indian Office Staff Provident Fund & Anr, reported in 2007 AIR SCW 6482.

6. Learned counsel for the respondent supports the impugned judgment.

7. Heard learned counsel for the parties and perused the material available on record.

8. The learned Trial Court found that the legal notice was not served upon the accused and the complainant has failed to prove service of notice as contemplated under Section 138 (B) of the NI Act and as such the complaint is not maintainable and ac