The failure to provide evidence of sending a legal notice under Section 138 of the Negotiable Instruments Act invalidates the complaint, leading to acquittal.

Order :

(Narendra Kumar Vyas, J.)

1. The appellant/complainant has preferred this acquittal appeal assailing the order dated 04.09.2021 passed by the learned Additional Sessions Judge (F.T.C.) Baikunthpur District- Koriya (C.G.) in Criminal Appeal No. 16/2020 by which the appeal preferred by the accused/respondent has been allowed and the learned Additional Sessions Judge has set aside the order dated 11.02.2020 passed by the learned Judicial Magistrate First Class, Baikunthpur, District- Koriya (C.G.) in Complaint Case No. 297/2019 by which the accused has been convicted for commission of offence under Section 138 of the Negotiable Instruments Act sentencing him to undergo R.I. for six years with fine of Rs. 1,70,000/- and in default stipulation additional R.I. for one month.

2. Case of the prosecution in brief is that the complainant has filed an application under Section 138 of the Negotiable Instruments Act before learned Judicial Magistrate First Class, Baikunthpur, District- Koriya alleging that the accused is working in colliery and the complainant is running grossery shop wherein transaction was going on between them and accordingly, the accused sought Rs. 1,75,000/- from the complainant for his domestic necessity and assured that the amount will be returned within six months. After six months, i.e. in the month July, 2018, when the complainant asked the accused to return the amount then the accused stated that whenever he will received the amount of bonus in the month of October, 2018, he will return the entire amount. After repeated persuasion made by the complainant, the accused gave a cheque bearing cheque No. 001741 dated 11.12.2018 for Rs. 1,58,000/- payable at Surguja Regional Gramin Bank, Branch- Pandavpara. The said cheque was deposited by the complainant in the bank on 14.12.2018 but the same was dishonoured and returned back to the complainant due to “insufficient fund”. Thereafter, the complainant sent a legal notice to the accused through his counsel in his address which was received by him but neither notice was replied by the accused nor the amount was returned back which has necessitated the complainant to file complaint.

3. Learned trial Court taking cognizance of the matter, sent notice to the accused and the accused examined himself under Section 313 of the Cr.P.C. wherein he denied the allegations leveled against him and also has taken a plea of false implication in the crime in question. In support of his contention, he has enclosed copy of agreement (Ex. P/1), copy of cheque (Ex. P/2), forwarding memo issued by Central Bank (Ex. P/3), registered legal notice (Ex. P/4) & acknowledgment (Ex. P/5).

4. The complainant examined himself by way of affidavit under Section 145 of the Negotiable Instruments Act wherein he has reiterated the stand taken in the complaint. The complainant was cross-examined by the accused wherein he has stated that Rs. 1,58,000/- was given to the accused. He has also denied that Rs. 30,000/- has been received by him and also denied that he has received cheque from the accused in place of the amount given to the accused as security. Complainant also examined Jagnarayan Sahu who has supported the case of the complainant and stated that the agreement was executed in front of him. This witness was extensively cross-examined wherein he has stated admitted that whatever documentation has been done has not seen in the court and he has stated that the agreement was executed out of the court. He has also stated that the complainant and the accused met outside the court and admitted that no documentation work was done before him.

5. Learned trial Court after appreciating the evidence and material on record has convicted the accused as afore-stated. Being aggrieved with the judgment passed by the learned trial Court, the accused preferred an appeal before the learned appellate Court mainly contending that the complainant has not sent the legal notice as neither the date of issuance of notice,