The main legal point established in the judgment is the mandatory requirement of giving written notice to the drawer of the cheque before filing a complaint under Section 138 of the Negotiable Instrument Act.

Subhash Kakade, J.

1. By means of filing the present application for leave to appeal under Section 378(iv) of the Code of Criminal Procedure, 1973, the applicant/complainant has assailed the order of acquittal passed by the learned CJM, Balaghat in Criminal Case No. 1620/2007 decided on 11.01.2010. By the judgment under challenge, learned trial judge acquitted the respondent, hereinafter referred as the accused, from the charge of offence punishable under Section 138 of Negotiable Instrument Act (for short "the Act").

2. To appreciate the say of the applicant/complainant, I would like to say that basic case that was placed before the trial Court in nutshell is that complainant/applicant filed a complaint under Section 138 of the Act against the accused alleging that in the month of May, 2006 accused had taken Rs.4 Lacs from the accused for advancement of his business and promised him to return the same. It is alleged that after repeated demands, the accused gave a cheque of Rs.4 Lacs on 25.01.07 in favour of the applicant drawn on Central Bank of India, Balaghat duly signed by him. On 6.7.07 applicant presented the cheque to his banker for encashment. On 19.07.07 the applicant was informed by his banker that owing to variation in the numerals in the cheque, no encashment could be made and as such the said cheque was returned unpaid. It is alleged that accused deliberately had instructed his banker to stop payment.

3. Thereafter on 13.08.07 the applicant sent a registered notice to the accused raising demand for payment of the money borrowed by him. The accused refused to accept the notice. Thereafter the aforesaid complaint was filed under Section 138 of the Act before the competent Court of jurisdiction. Learned trial Court after appreciating the evidence on record and after following various citations has come to the conclusion of acquittal of the respondent holding that notice was not given properly as such the provisions of Section 138 of the Act are not attracted and has dismissed the complaint and acquitted the accused from the charge under Section138 of the Act. Aggrieved thereby, this application has been filed.

4. Shri Pushpendra Kumar Dubey, learned counsel appearing for the applicant/complainant has taken me through the entire judgment and main grounds of challenge mentioned in the memo of application, and pointed out error that has allegedly committed at the time of recording of the findings of acquittal by the learned trial Court. He also submits that the prosecution evidence as adduced on behalf of complainant is cogent and germane to establish charge under Section 138 of the Act as the notice was duly served upon the accused, hence, he prays for grant of leave to appeal against the aforesaid impugned judgment of acquittal.

5. Learned PL appearing for the State submits that State is proforma party.

6. Heard learned counsel for the applicant at length, perused the impugned judgment and evidence on record carefully; the Court is of the view that the learned trial Court has not committed any error in acquitting the accused.

7. Once the cheque is issued by the drawer, a presumption under section 139 of the N.I. Act will follow. Presentation of the cheque in the bank is the next step.

8. In this case in hand, cheque (Ex.P-1) was issued on dated 25.01.2007.

9. As per cheque return information memo Ex.P-3, which was received with memo Ex.P-4 and also as per statement of Bank Officer, G. Ramna Rao (PW/1) it is clear that cheque Ex.P-1 was returned on dated 19.07.2007, which goes to show that the cheque Ex.P-1 was presented within stipulated period of six months.

10. Next most important step is that the holder of the cheque in due course is required to give a written notice to the drawer of the cheque within a period of thirty days from the date of receipt of information from the bank regarding the return of the cheque as unpaid.

11. Service of notice of demand is a condition precedent for filing of complaint. Notice of de