The complainant must prove the service of demand notice, and once proven, the onus shifts to the accused to prove non-receipt. Dismissal of the complaint solely on the ground of failure to prove the service of demand notice is erroneous.

This revisional application is directed against the judgment and order dated 05.03.2013, passed by learned Addl. Sessions Judge, Court No.2, West Tripura, Agartala in Criminal Appeal No. 33(4) of 2010 whereunder the learned Addl. Sessions Judge upheld the judgment and order of acquittal dated 31.07.2010, passed by learned Judicial Magistrate 1st Class, Court No.5, Agartala in CR Case No. 2893/2000 under Section 138 of Negotiable Instruments Act, 1881 (for short, N.I. Act).

2. Heard learned counsel, Mr. A. Sengupta for the complainant-petitioner (hear-in-after mentioned as complainant).

Learned counsel, Mr. John Debbarma on behalf of learned P.P. is present.

No representation on behalf of respondent No.2 i.e. the accused.

3. The case of the petitioner is that he filed a complaint case No. CR 2893 of 2000 before the court of learned Chief Judicial Magistrate, Agartala against the accused-respondent No.2, Paresh Debbarma, seeking punishment of the accused under Section 138 of N.I. Act.

4. Shorn of unnecessary details, the case of the complainant is that, the accused-respondent No.2 Paresh Debbarma was to pay certain dues and for that purpose the accused-respondent issued one account payee cheque of Rs.28,000/- dated 28.05.2000 drawn on Tripura Gramin Bank, Mohanpur Extension Counter, Bankim Nagar Branch. The complainant-petitioner presented that cheque to the bank for encashment and on 08.07.2000 the cheque was returned with an endorsement of insufficient fund. It is the case of the complainant that he thereafter issued notice to the accused respondent Paresh Debbarma through his engaged learned counsel, Mr. S. Kar Bhowmik on 12.07.2000 but the respondent did not pay the amount and therefore, he filed the complaint before the learned Chief Judicial Magistrate under Section 138 of the N.I. Act.

5. Cheque No.611061 dated 28.05.2000 has been proved as Exbt.1. The return slip issued by the Tripura Gramin Bank dated 29.06.2000 has been proved as Exbt.2. Copy of the notice issued to the accused-respondent and the postal registration slip has been proved as Exbt.4 series.

6. The trial Court by impugned judgment dated 31.07.2010 has held that the complainant has failed to prove the service of demand notice on the accused and therefore, acquitted the accused from the charge. The appellate Court affirmed the judgment. Hence, this revisional application.

7. Proviso (b) to Section 138 of N.I. Act prescribes thus—

“(b) the payee or the holder in due course of the cheque, as the case may be, makes a demand for the payment of the said amount of money by giving a notice in writing, to the drawer of the cheque, [within thirty days] of the receipt of information by him from the bank regarding the return of the cheque as unpaid; and…”

8. The complainant is to prove that he has given a notice in writing to the drawer of the cheque. The trial Court observed that the complainant has failed to prove the service of the notice and therefore, acquitted the accused.

9. The Supreme Court in the case of K. Bhaskaran Vs. Sankaran Vaidhyan Balan & Anr., reported in (1999) 7 SCC 510 in Para 17 to 21 has observed thus—

“17. The more important point to be decided in this case is whether the cause of action has arisen at all as the notice sent by the complainant to the accused was returned as “unclaimed.” The conditions pertaining to the notice to be given to the drawer, have been formulated and incorporated in clauses (b) and (c) of the proviso to Section 138 of the Act. The said clauses are extracted below :

"(b) The payee or the holder in due course of the cheque, as the case may be, makes a demand for the payment of the said amount of money by giving a notice in writing, to the drawer of the cheque, within fifteen days of the receipt of information by him from the bank regarding the return of the cheque as unpaid; and

(c) the drawer of such cheque fails to make the payment of the said amount of money to the payee or as the case may be, to the holder in due