For a conviction under Section 138, the complainant must prove both enforceable debt and properly served demand notice; failure to do so leads to acquittal.

JUDGMENT

To question the legality of the order of acquittal dated 12.07.2018 delivered in Criminal Appeal No.32 of 2017 by the Addl. Sessions Judge, Gomati Judicial District, Udaipur, this appeal has been filed under Section 378 (4) of the Cr.P.C. It may be noted at the outset that the appellant filed a complaint under Section 138 of the Negotiable Instrument Act being CR. 18 of 2016 [NI]. The said complaint was tried by the Judicial Magistrate, First Class, Udaipur, Gomati Tripura.

[2] Briefly stated, the allegations made in the complaint is that the respondent No.1 had issued 3[three] cheques bearing No.0000045, 0000046 & 0000047 respectively for an amount of Rs.1,83,000/-, Rs.2,50,000/- & Rs.2,50,000/- in favour of the appellant. All those cheques were dishonoured by the banker for insufficiency of fund in the account of the respondent No.1 [the accused]. According to the appellant, he had rented out his vehicle [Tipper]. It has been further stated that the accused took loan of Rs.2,83,000/- from the complainant [the appellant herein] on condition of repayment whenever the demand of repayment would be made by the complainant. According to the appellant, in order to discharge the liability of repayment, the respondent No.1 issued those cheques on Bank of India, Udaipur town Branch. Those cheques were deposited in the appellant’s savings account No.30045018435 maintained in the SBI. On 30.10.2015 the appellant was informed that the Bank of India had returned those cheques unpaid for insufficiency of fund in the account of the respondent No.1. First on 05.11.2015, as alleged by the appellant, the accused person requested him to deposit the cheques again on 05.11.2015. Again those cheques were dishonoured after the deposit was caused on instruction. The said incident of dishonour of cheque for insufficiency of fund was reported to the appellant. The appellant has claimed to have served a demand notice to the accused on 14.11.2015, but the acknowledgment card did not reach the appellant. As a result, he had communicated to the concerned post office through his counsel. Initially, there was no response from the postal authority. However, on 29.02.2016 Sub- Post Master, Gokulpur Post Office informed his counsel that the notice sent to the accused person had been duly received by the addressee [the respondent No.1] on 18.11.2015. But the accused person did not make payment of the said amount as reflected in those cheques in compliance of the demand. Consequently, on 23.03.2018 the appellant lodged a complaint under Section 138 of the Negotiable Instrument Act, 1881.

[3] The trial judge has observed that there is proof that the notice demanding payment of the amount as described in the cheques was received by the accused [the respondent No.1]. The trial judge has, inter alia, has observed as under:

“The evidence of CW-1 reveals that the demand notice was issued on 14.11.2015 through his advocate, by registered post. Exhibit.16 i.e. the letter dated 29.02.2016 reveals that the accused person received the legal notice on 18.11.2015. The accused person has not challenged the legal validity of the above documents and he has also not denied that he had received the legal notice sent by the complainant on 18.11.2015. Therefore, it can be safely concluded that the demand notice was issued within thirty days of the receipt of intimation of first dishonour of the cheques as the date of receipt of intimation of first dishonour of the cheques as the date of receipt of intimation was on 30.10.2015. As such, considering the above documentary evidences, I have no he