The requirement of legal notice under Section 138 of the Negotiable Instruments Act is crucial, and failure to challenge its service undermines the defense.

JUDGMENT :

PRADEEP KUMAR SRIVASTAVA, J.

1. The instant Criminal Revision is directed against judgment dated 01.06.2016 passed by learned Additional Sessions Judge, Ghatshila in Criminal Appeal No. 61 of 2016, whereby and whereunder, the judgment of conviction and order of sentence dated 19.03.2016 for the offence under section 138 of N.I. Act passed against the petitioner/appellant vide complaint case No. 99 of 2011 (T.R. No. 15 of 2016) passed by learned Judicial Magistrate First Class, Ghatshila, whereby the petitioner sentenced for SI for one year along with fine of Rs.28 lakhs as compensation has been upheld and confirmed.

2. The factual matrix giving rise to this revision is that one Ramesh Kumar Dhanuka instituted the aforesaid complaint case against the petitioner stating inter alia that petitioner is carrying on a business of sugar under the Name and Style, Nurshingardh Traders at Kharagpur, (West Bengal) and the complainant used to carry on sugar business. It is further alleged that earlier the petitioner came to the shop of the complainant and expressed his willingness to purchase sugar on credit which he refused. Later on, upon request of accused-petitioner and his guarantors Pradeep Agrawal and Suresh Agrawal on 05.07.2011, the complainant sold sugar on credit worth Rs.5,09,060/- on 07.07.2011 and again in the month of July itself, the complainant sold sugar worth Rs.34,21,790/- on guarantee of Pradeep Agrawal and Suresh Agrawal. It is further alleged that on demand for payment of the credit, the present petitioner issued two cheques drawn on HDFC Bank, Kharagpur Branch, W.B. in favour of the complainant vide cheque No. 008080 dated 20.07.2011 of Rs.10 lakhs and another cheque bearing Cheque No. 008081 dated 20.07.2011 of Rs.10.50 lakhs total amount of Rs.20,50,000/- and assured him that on presentation of aforesaid cheques would be honoured. The complainant deposited the above both cheques as per instruction of Sanjay Agarwal (petitioner) for encashment in his account maintained with Bank Of India, Saragasole Branch, which were dishonoured on 28.07.2011 with endorsement “payment stopped by the drawer.” Thereafter, the complainant contacted with the present petitioner and other co-accused persons, who are partners of the firms, who expressed their apology and advised to deposit the said cheques again, which shall be honoured. Accordingly, the complainant deposited both cheques on 16.08.2011 in his bank, which were again dishonoured on 19.08.2011 with endorsement “payment stopped by the drawer” (Ext.1 & 1/1).

The complainant sent a legal notice dated 07.09.2011 (Ext.2) to the present petitioner who has drawn cheques (Ext.1 & 1/1) in his favour with Return Memo with endorsement of stop payment (Ext.3 - 3/1), praying to refund the cheques amount within 15 days from the receipt of the notice but no reply was made. Thereafter, this complainant case was lodged within stipulated time.

3. Learned trial court took cognizance for the offences under section 138 of N.I. Act against the petitioner vide order dated 19.07.2012 and issued summons against him. The present petitioner appeared and substance of accusation was explained to him on 22.05.2014 to which he pleaded not guilty and claimed for trial.

4. In course of trial, the complainant has examined three witnesses namely CW-1 Raj Kishore Mishra, CW-2 Ramesh Kumdar Dhanuka (Complainat) and CW-3 Kishan Kumar Singh and also adduced the following documentary evidence:

5. In his statement under section 313 of Cr.P.C. the accused-petitioner has admitted the issuance of cheques in favour of the complainant in his signature