The legal point established is the mandatory requirement of giving notice before filing a complaint under section 138 of the Negotiable Instruments Act and the burden of proof on the appellant to establish the nature of the cheque as repayment for a debt.

Judgment

This appeal has been filed by the complainant againstthe order dated 7-5-2002 passed by the 11th Addl. Sessions Judge, Indore, in Criminal Appeal No. 363/2001, by which learned lower Appellate Court reversed the judgment passed by the Judicial Magistrate First Class, Indore, in Criminal Case No. 2803/1999 and acquitted the respondent accused for the offence punishable under section 138 of Negotiable Instruments Act, 1881.

2. The applicant-DharanidharMishra, filed a complaint against the non-applicant -Nasir Khan, under section 138 of Negotiable Instruments Act, 1881 (henceforth 'the Act'). The applicant alleged in his complaint that non-applicant had taken a loan of Rs. 2,00,000/- from him on 24-2-1997. He promises to repay after 24 months and to pay interest at the rate of 18% per annum. In lieu of loan, he mortgaged his shop by executing a documents Exhibit P/10 in his favour. He also created a second charge on his shop No. 9 as security for the loan and unregistered agreement Exhibit P/10 was executed by him. The non-applicant, however, could not make the payment of principal amount or interest. Therefore, on 11-2-1999, he handed over a cheque for Rs. 2,85,000/- to the complainant. The applicant presented the cheque to the bank. The bank dishonoured the cheque issued by the non-applicant with the remark that "non-applicant closed his bank account". The dishonored cheque along with the advice of the bank was returned to the applicant on 13-2-1999.

3. Thereafter, applicant served a legal notice dated 17-2-1999 to the non-applicant by registered A.D. with acknowledgment due under section 138 of the Act, which was received by the non-applicant on 25-2-1999. On receiving no response from the non-applicant, applicant filed a complaint under section 138 of the Act on 17-3-1999, within the period of limitation prescribed therefor.

4. On the aforesaid allegations and after registering the complaint and noticing the non-applicant,the Court proceeded to examine the applicant, Dharanidhar before framing the charge. Thereafter it framed the charge against the non-applicant-Nasirkhan.

5. The Judicial Magistrate First Class, Indore, after appreciating the Court statements of complainant and his witnesses and statement of accused recorded under section 313 of Criminal Procedure Code, came to the conclusion that section 138 would be applicable in a case where cheque is dishonored on the ground that account by drawer is closed.

6. In respect of service of notice, the non-applicant raised an objection before the Magistrate that he had not received the notice issued by the applicant on 17-2-1995 and, therefore, there was no compliance of the provisions of section 138 of the Act. It has also alleged that acknowledgment does not appear the signature of then on-applicant. The Magistrate after appreciating the judgment of the Supreme Court as well as of the High Court, came to the conclusion that any drawer who claims that he did not receive the notice sent by the post, can, within 15 days of the receipt of summons from the complaint in respect of under section 138 of the Negotiable Instruments Act, make payment of the cheque amount and submit to the Court that he had made payment within 15 days of receipt of summons (by receiving a copy of complaint with summons) and, therefore, a person who does not pay within 15 days of receipt of summon from the Court along with the copy of the complaint under section 138 of the Act cannot obviously contend that there was no proper service of notice as required under section 138, by ignoring a statutory presumption to the contrary under section 27 of the General Clauses Act and under section 114 of the Evidence Act and held that sufficient compliance of provision of section 138 was made by the complainant.

7. In respect of the second objection that cheque was issued by the non-applicant in favour of the applicant by way of security and, therefore, drawer not liable to pay under section 138 of the Act, the J