The burden of proof lies on the complainant to establish the issuance of the cheque and the valid service of legal notice in cases under section 138 of the Negotiable Instruments Act.

JUDGMENT :

The complainant is aggrieved of the judgment dated 07.08.2015 passed in Criminal Appeal No.293 of 20 13.

2. The complainant is mother-in-law of the accused on whose complaint Complaint Case No. C/l 1834 of 2010 was instituted under section 138 of Negotiable Instruments Act. By judgment dated 03.10.2013, the learned Judicial Magistrate, 1st Class, Jamshedpur convicted O.P No.2 and sentenced him to undergo R.I for six months under section 138 of Negotiable Instruments Act. The accused was further directed to pay fine of Rs.25 lakhs to the complainant and in default of payment of the fine amount to undergo S.I for three months.

3. The complainant has alleged that she gave a cheque of Rs.20 lakhs in the name of her daughter Laxmi Singh. The amount was duly credited in her account with Axis Bank, Nagpur. The background of the aforesaid payment to the daughter of the complainant was that she had distributed the sale proceed of the landed properties at Dharupur amongst her daughters. The other daughters accepted their share given to them by the complainant but Laxmi Singh who is wife of Sanjay Kumar Singh refused saying that it was a paltry sum compared to the sale consideration. The complainant has alleged that on 02.10.2009 the accused came to her house at Jamshedpur and obtained the cheque in question of Rs.20 lakhs forcibly from her. It appears that a partition suit was filed by her husband against his co-sharers and the properties at Dharupur (Bikramganj) was claimed to be part of his ancestral properties. The complainant and her five daughters were arrayed as defendants in a subsequent suit filed by the agnates of the husband of the complainant and though they wanted to file written statement at the instigation of the husband (the accused) Laxmi Singh declined to join them. In the aforesaid circumstances, the accused returned the aforesaid amount and gave a cheque of Rs.20 lakhs dated 05.01.2010 drawn on Axis Bank, Nagpur in favour of the complainant and the said cheque was returned with endorsement 'stop payment'.

4. After the enquiry, the learned Judicial Magistrate, 1st Class, Jamshedpur took cognizance of the offence under section 138 of Negotiable Instruments Act and by an order dated 01.03.2011 substance of accusation was explained by the learned trial Judge to the accused. During the trial, original cheque dated 05.01.2010, cheque return memo dated 12.05.2010, carbon copy of legal notice dated 17.05.2010, envelope with refusal endorsement and xerox copy of bank statements were produced by the complainant. The complainant has examined herself and Rajesh Singh as witnesses. The accused has examined Jai Prakash Singh and T. Venkat Rao, besides leading documentary evidence. The learned trial Judge has held that the cheque dated 05.01.2010 vide Ext.1 was returned unpaid due to 'stop payment' instruction by the accused and he refused to accept the notice demanding payment of the cheque amount within 15 days.

5. In paragraph no.12 of the judgment in Complaint Case No. C/l 1834 of 2010/TR No.1453 of 2013, the learned trial Judge has observed as under:

12. From perusal of Ext.l i.e. the cheque return memo, it transpires that the cheque hearing no. 86925 dt. 05.01.2010 was dishonored due to payment stop by the accused which is also supported by Ext.A and From perusal of Ext.3 and Ext.4 it transpires that the complainant had made a demand for the payment of the cheque amount by giving a notice in 'writing to the accused within 15 days of receipt of information from the bank regarding the return of the cheque unpaid hut this demand notice had been returned endorsing by the postal peon as refused. In the above facts and circumstances it may be presumed that the demand notice has been served upon the accused when it was duly delivered at the place of the business of the accused. Considering above discussion I find that postal endorsement refused may be presumed as tended service of demand notice to the accused and accused failed