1. In order to establish an offence under Section 138 of the Negotiable Instruments Act, 1881, the prosecution must prove that the demand notice was served upon the accused at the correct address. 2. The burden of proof lies on the accused to show that he had paid the amount due on the cheque. 3. The court should not allow an application under Section 311 Cr.P.C. to produce additional evidence in defence if the accused has not appeared as a witness in defence.

Mr. Prashant Kumar Agarwal, J.

1. The complainant-appellant has filed this appeal under Section 378 Cr.P.C. against the judgment and order dated 28.11.2013 passed by the Additional Sessions Judge No.3, Jaipur Metropolitan, Jaipur in Criminal Appeal No.15/2013 whereby the learned appellate Court allowed the appeal filed by the accused-respondent under Section 374 Cr.P.C. and by setting aside the judgment and order dated 5.10.2012 passed by the Metropolitan Magistrate No.30, Jaipur Metropolitan, Jaipur in Criminal Case No.61/2009 acquitted the respondent for offence under Section 138 of the Negotiable Instruments Act, 1881 (hereinafter to be referred as “the Act”). Learned trial Court after convicting the respondent-accused for aforesaid offence sentenced him to undergo simple imprisonment for two years and to pay a fine of Rs. three lacs and in default thereof to further serve simple imprisonment for one month. It was further ordered that out of Rs. three lacs to be paid as fine, an amount of Rs.2,90,000/- would be paid to the complainant-appellant as compensation and the remaining amount of Rs.10,000/- be deposited in the exchequer. It is further to be noted that in appeal an application under Section 311 Cr.P.C. was filed by the respondent-accused with a prayer to produce evidence in defence which was allowed by the appellate Court vide order dated 31.7.2013 and in defence Shri Jaspal Singh and Smt. Gurjeet Kaur were examined on behalf of the respondent.

2. From the evidence available on record and the admissions made by the parties dispute does not exist between them about following facts:-

(1) A transaction of sale was entered into by the respondent-accused, who is real brother of the complainant, in regard to their joint property situated at Delhi and a share of Rs.four lacs was to be paid by the respondent to the appellant-complainant and in this regard Rs.two lacs were paid in cash by respondent to appellant some in July 2008 and in order to pay the remaining amount of Rs.two lacs respondent gave disputed cheques to the appellant. In regard to the payment of Rs.two lac in cash and issuance of disputed cheques an agreement (Ex.P8) was executed by respondent in favour of appellant.

(2) When disputed cheques were presented by the appellant for encashment in his bank on 5.11.2008 they were dishonored by the reason that the bank account for which they were issued was found closed.

(3) The demand notice sent by the appellant to the respondent through his counsel on 29.11.2008 returned back with a postal remark that addressee could not be found although several efforts were made.

3. A complaint for offence under Section 138 of the Act came to be filed by the appellant against the respondent with the aforesaid averments with a prayer that respondent may be convicted for aforesaid offence and an amount double the cheque amount may be awarded to the appellant as compensation. Respondent appeared before the trial Court through his counsel and following two defences were taken by him:-

(1) Demand notice was not served upon him as it was not sent to his present and correct address and in absence of service of demand notice offence under Section 138 of the Act is not made out.

(2) The remaining amount of Rs.two lacs was also later on paid by the respondent to appellant in cash but appellant did not return the disputed cheque to him and by misusing the same the complaint has been filed. In trial it was not made clear that when this remaining amount was paid.

4. Learned trial Court after appreciating and evaluating the evidence available on record did not accept both the defences taken by the respondent and in view of the fact that cheques in dispute were admittedly issued by the respondent and the same were dishonored by the reason that the account was closed, respondent was accordingly convicted and sentenced. It is to be noted that respondent failed to produce evidence in defence in trial despite the fact that several opportunities wer