The appellant, original complainant, has filed this appeal under Section 378 of the Code of Criminal Procedure, 1973 and challenged the judgement and order of acquittal passed by learned Judicial Magistrate, First Class, Dwarka, on 28.4.2009 in Criminal Case No. 193 of 2003 acquitting the respondent accused for the offence under Section 138 of the Negotiable Instruments Act, 1881 (“the Act” for short). 2. According to the complainant, the accused borrowed Rs. 20,000/- and gave cheque No. 219031 dated 28.12.2002 for Rs. 20,000/- drawn on Bank of Baroda, Mithapur Branch. On presentation of the cheque in the Bank, it returned unpaid with the endorsement “fund insufficient”. Therefore, notice was served to the accused which was received by him but the accused gave evasive reply and did not pay the amount of unpaid cheque. Therefore, complaint under Section 138 of the Act was filed.
3. The trial Court issued summons and the accused appeared and denied having committed the offence and therefore the prosecution adduced evidence. On completion of recording of the evidence, further statement of the accused under Section 313 of the Code of Criminal Procedure was recorded. The accused in his further statement explained the incriminating circumstances and stated that he had lost the cheque in question and therefore the Bank was also informed about the same that the complainant has misused the lost cheque.
4. After hearing learned advocates for the parties, the trial Court by the impugned judgement acquitted the accused. Being aggrieved by the said decision, the complainant has preferred this appeal.
5. I have heard learned advocate Mr. Hajare for the appellant, learned advocate Mr. Majmudar for the respondent- accused and learned A.P.P. Ms. Shah for the respondent State at length and in great detail. I have also perused the record and proceedings of the trial Court.
6. Learned advocate Mr. Hajare for the appellant submitted that there is no time limit fixed in the Act to pay the debt and when cheque in question was given towards discharge of debt, there is presumption under Section 139 of the Act that the cheque was issued for discharge of debt or liability and the burden is on the accused to rebut the presumption but the accused failed to rebut the presumption and therefore the trial Court committed error in acquitting the accused. He also submitted that the ingredients of Section 138 of the Act are proved and the accused did not lead any evidence to prove that the cheque was lost and was misused. Therefore, the impugned judgement is required to be set aside.
7. Learned advocate Mr. Majmudar for the respondent accused submitted that the cheque in question was lost and intimation of stop payment was given to the Bank and the cheque was presented in the Bank long time after the intimation given to the Bank. He submitted that the complainant failed to prove that the cheque was given towards discharge of debt as he failed to produce any evidence that the amount was advanced to the accused. He submitted that the accused was able to rebut the presumption but the complainant has failed to prove the debt. Therefore, no interference is warranted in the impugned judgement and the appeal is required to be dismissed.
8. Under Section 138 of the Act where any cheque drawn by a person on an account maintained by him with a banker for payment of any amount of money to another person from out of that account for the discharge, in whole or in part, of any debt or other liability is returned by the bank unpaid, either because of the amount of money standing to the credit of that account is insufficient to honour the cheque or that it exceeds the amount arranged to be paid from that account by an agreement made with that bank, such person shall be deemed to have committed an offence. Section 138(b) of the Act provides that when a cheque is returned unpaid, the payee or the holder in due course of the cheque, as the case may be, is required to make a demand of the amount of unpaid cheque by giving a notice in writing to the drawer of the cheque. Section 138(c) of the Act provides that when drawer of such cheque fails to make the payment of the amount of money to the payee or, as the case may be, to the holder in due course of the cheque within 15 days from the date of receipt of the notice, such person shall be deemed to have committed an offence under Section 138 of the Act.
9. In view of the above provision, it is clear that when the cheque is returned unpaid on account of the reasons mentioned in the said provision, the payee or holder in due course, as the case may be, is required to make a demand for the payment of unpaid amount of cheque by giving notice in writing to the drawer of the cheque. The prosecution produced the cheque given by the accused at Exh. 43. The prosecution also produced the bank memo at Exh. 45 and the notice given to the accused demanding the amount of unpaid cheque at Exh. 46. On perusal of cheque at Exh. 43, it appears that the cheque is drawn on behalf of M/s. Kanji Raja & Company and it is drawn in favour of the complainant. The bank memo Exh. 45 indicates the cheque Exh. 43 was returned unpaid on account of insufficient fund. The complainant served notice to the accused demanding amount of unpaid cheque. It appears from the notice Exh. 46 that it is not addressed to the drawer of the cheque as required under Section 138(b) of the Act. Therefore, in my view, requirement of Section 138 of the Act with regard to notice is not complied with. It is also settled position that for offence under Section 138 of the Act, notice to the accused making demand of unpaid cheque is sine qua non. As the complainant failed to serve notice, the trial Court was justified in recording acquittal.
10. In view of the fact that the complainant failed to comply with the requirement of Section 138(b) of the Act, the other contentions raised by the appellant in respect of merits of the case are not required to be considered.
11. In view of the above, learned Magistrate was justified in acquitting the accused. Hence no interference is warranted in the impugned judgement.
12. In the result, the appeal fails and stands dismissed.
(BANKIM N. MEHTA, J) (pkn)