IMPORTANT POINT
Dishonour of cheque – Complainant is not required to prove service of notice on accused before institution of case—Requirement of giving notice is a clear departure from rule of criminal law, where there is no stipulation of giving notice before filing complaint.

JUDGMENT

The instant Criminal Revision is directed against judgment of acquittal dated 07.09.2015 passed by learned Additional Sessions Judge-12, Dhanbad in Criminal Appeal No. 78 of 2014, whereby and whereunder, the conviction and sentence of the opposite party No.2 passed by learned trial court for the offence under section 138 of Negotiable Instrument Act has been reversed and set aside and appeal was allowed.

2. Factual matrix of the case is that the petitioner (complainant) entered into an agreement with the opposite party no.2, who was dealing with the business of plastic materials to supply quality goods and thereby advanced Rs.90,000/- in the month of September, 2007 but the opposite party No.2 did not supply the materials as agreed between the parties and upon persistent demand of the advance money, the opposite party No.2 issued two cheques bearing No.310525 dated 07.12.2007 of Rs.45,000/- and another cheque bearing No.310524 dated 18.10.2007 of Rs.45,000/- respectively. It is further alleged that the complainant presented the said cheque bearing No.310525 which was returned with remark of “insufficient fund” by the banker under memo of notice dated 18.10.2007 and 07.12.2007 respectively. It is further alleged that the Branch Manager of ICICI Bank, Dhanbad instead of sending original cheque No.310524 and cheque return memo dated 18.10.2007, by mistake sent to the opposite party No.2, which was received by him. Subsequently, the Branch Manager issued duplicate cheque return memo dated 27.10.2007 in favour of the complainant. Hence, the complainant send legal notice through registered post with A/D demanding the cheque amount from opposite party No.2 dated 19.12.2007 but he did not reply to the notice nor paid the amount. Hence, the complaint was lodged.

3. Upon summons, the accused appeared and claimed to be tried. In order to substantiate his case, the complainant was examined as a witnesses (CW-1) and he has also adduced following documentary evidence:—

Ext.1 Cheque No.310525 dated 7.12.2007 of Rs.45,000/-

Ext.2 Cheque return memo dated 07.12.2007 regarding cheque No.310525

Ext.3 Cheque return memo of cheque No.310524 dated 18.10.2007 of Rs.45,000/

Ext.4 certificate issued by ICICI Bank dated 07.12.2007.

Ext.5 Advocate notice dated 12.12.2007

Ext.6 & 6/1 Postal receipts dt. 19.12.2007

4. On the other hand, no oral or documentary evidence was adduced by the defence except cross-examination with the complainant (CW1). The accused has pleaded his innocence in his statement under section 313 of Cr.PC and non-receipt of legal notice allegedly sent to him by the complainant.

5. Learned trial court after considering the evidence available on record arrived at clear cut findings that there was un-rebutted evidence led by the complainant about the agreement to sale plastic goods between the complainant and accused and Rs.90,000/- was given to the accused as advance in the month September, 2007. It was also proved that the accused did not supply the materials nor return the money rather in order to satisfy his liability, he issued two cheques in favour of the complainant, which were dishonoured due to “insufficient funds” in the bank account of the drawer. After compliance of the provision of Section 138 of Negotiable Instrument Act, the complaint was instituted, hence, the accused was held guilty and sentenced to undergo of S.I. of 6 months for the offence under section 138 of N.I. Act and also to pay compensatory cost of Rs.90,000./- under section 357 of Cr.PC.

6. The opposite party No.2 assailed the judgment of conviction passed by the trial court before the appellate court by filing Cr. Appeal No.78 of 2014 mainly on following grounds.

(i) As per Ext.6 & 6/1, it is apparent that legal notice was sent to the appellant on 19.12.2007 and the complaint petition was lodged on 18.01.2008 i.e. within a period of one month.

(ii) There is no material on record showing the date of service of legal notice upon the appe