The absence of proof of postal receipt of notice is a crucial factor in establishing the offence under Section 138 of Negotiable Instruments Act.

1. These two petitions have been heard analogously and are being decided together, more so in view of the fact that the complainant and accused in both the cases are the same being real brothers; the offence under which the private opposite party has been acquitted by learned Court of Judicial Magistrate, 1st Class, Dhanbad by the impugned judgments of the same date 29th November, 2016 are also the same i.e., under Section 138 of Negotiable Instruments Act. Shorn of unnecessary details, from the findings of learned court below in the respective judgments, the following facts emerge.

2. In Cr. M.P. No. 222 of 2017, the Cheque bearing no. 318783 dated 10th December, 2009 issued by opposite party no. 2 in the name of complainant has been adduced as Ext.-1; Ext.-1/1 is the signature of Branch Manager in return memo dated 12th December, 2009 with the comment “payment stopped by drawer”. The legal notice issued by the complainant is dated 27th December, 2009 i.e., within 30 days of receipt of information from the Bank regarding the return of cheque as unpaid, being Ext.-2. Ext.-3 is the reply of notice by the accused/opposite party dated 11th January, 2010 i.e., within 15 days of notice. Complaint was filed on 25th January, 2010.

3. In Cr. M.P. No. 226 of 2017, the cheque issued by opposite party no. 2 in the name of complainant bearing no. 318784 is Ext.- 2 dated 10th June, 2010. On presentation, the said cheque was returned by the Banker vide Memo dated 12th June, 2010 with the comment “payment stopped by drawer”. The Advocate notice is Ext.-4, which was issued on 27th June, 2010 making a demand for payment of the said amount within 30 days of the information to the complainant from the Bank regarding return of cheque as unpaid. The opposite party no. 2 replied thereto through letter dated 9.7.2010 as Ext.-1/3. On failure to satisfy the demand, the complaint was filed on 26.7.2010.

4. Learned counsel for the appellant submits that the accused/opposite party no. 2 has been acquitted in both the complaints on the simple ground that the complainant failed to adduce the postal receipt of notice, which is an important ingredient to be satisfied to establish the offence under Section 138 of N.I. Act. It is contended that reply made on behalf of opposite party to the demand notice within 15 days in itself is a sufficient evidence of due notice of demand upon him. The purpose of notice is to make the opposite party aware of the demand. If the opposite party get receipt of the legal notice of demand and has replied to it also within time refusing to honour the negotiable instrument i.e, the cheque in question, ingredients of the offence under Section 138 of N.I. Act stands fulfilled. Learned trial court has therefore committed an error in acquitting the accused from the charges under Section 138 of N.I. Act. The complainant petitioner herein has therefore prayed for grant of leave to appeal.

5. Learned counsel for the opposite party no. 2 has defended the impugned judgment of acquittal. He has submitted that an important ingredient of the offence under Section 138 of N.I. Act does not get satisfied in the absence of proof of postal receipt of notice. Learned counsel relies upon a judgment rendered by Hon'ble Supreme Court in the case of K. Bhaskaran v. Sankaran Vaidhyan Balan, reported in (1999) 7 SCC 510, which lays down the ingredients require to be satisfied for constituting an offence under Section 138 of N.I. Act. It is therefore submitted that the impugned judgment does not suffer from any flaw. Therefore, leave to appeal may be refused.

6. We have considered the submission of parties in the light of relevant material facts noted above. On consideration of totality of facts and circumstances and without expressing any opinion on the merits of the case of the parties, lest it may prejudice their case, we are satisfied that the petitioner has made out a case for grant of leave to appeal. The merits of the contention relating to se