Appellant – original complainant has filed this appeal and challenged the Judgment and Order of acquittal passed by the learned Additional Senior Civil Judge and Additional CJM, Surat on 5.10.2010 in Criminal Case No.14563 of 2008 acquitting the respondent accused for the offence under section 138 of the Negotiable Instruments Act, 1881 (for short “the Act”). 2. According to the complainant, the accused is having a retail Sari Showroom in the name of Laxmi Silk Palace and is the Proprietor of the said showroom. The accused and his son Nirajbhai Radheshyam Mishra used to purchase the goods according to their requirement. As the accused was in need of saris, after negotiation of price, purchased the goods. The bills for the purchase of goods were given to the accused and Rs.73,182/- remained payable by the accused towards the goods purchased by him. The accused gave cheque No.099308 dated 11.9.2007 for Rs.10,000/- drawn on the Gandevi Cooperative Bank Limited, Goharbag, Bilimora towards part payment. The cheque on presentation to the bank returned unpaid with the endorsement of “exceed arrangement” on 16.10.2007. Therefore, notice dated 16.11.2007 as required under the provisions of the Act was served to the accused, but the accused neither replied to the notice nor paid the amount of unpaid cheque. Therefore, complaint under section 138 of the Act was filed.
3. The trial Court issued summons. Pursuant to the summons, the accused appeared and denied having committed the offence. Therefore, the prosecution adduced evidence. On completion of recording of evidence, further statement of accused was recorded parties, the trial Court by impugned judgment acquitted the accused. Being aggrieved by the said decision, the complainant has preferred this appeal.
4. Learned advocate Ms. Shah submitted that the acquittal is recorded on the ground that notice as required under law was not served, but the complainant received the memo informing him about dishonour of cheque on 22.10.2007 and the notice was issued to the accused on 16.11.2007. Therefore, the notice was served within the time prescribed under law. Therefore, the trial Court committed error in recording finding that notice as required is not served to the accused. Therefore, the impugned judgment and order is required to be set aside and the appeal is required to be allowed.
5. Learned advocate Mr. Saiyed submitted that the bank memo indicates that the cheque was dishonoured on 16.10.2007 and the complainant has not adduced any evidence to show that he received the intimation on 22.10.2007. Therefore, the notice was not served to the accused as required under law and hence, the trial Court was justified in recording the finding that notice as required is not served. Therefore, the impugned order does not require any interference and the appeal is required to be dismissed.
6. It appears from the rival contention that the controversy between the parties is with regard to by a person on an account maintained by him for payment of any amount of money out of that account for the discharge, in whole or in part, of any debt or other liability, is returned unpaid, either on account of insufficient fund or that it exceeds the amount arranged for, such person shall be deemed to have committed an offence. Section 138(b) proivides that when the cheque is returned unpaid, the payee or the holder in due course of the cheque, as the case may be, is required to make demand for the payment of the amount of unpaid cheque 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 return of the cheque as unpaid. Section 138(c) provides that after the service of notice, if the drawer of cheque fails to make the payment of amount of unpaid cheque within fifteen days of the receipt of the said notice, such person shall be deemed to have committed the offence. In order to prove that the notice as required under the provisions of section 138 of the Act was served to the accused, the prosecution produced the original cheque drawn on the Gandevi Cooperative Bank Limited at Exh-24, the memo issued by the said Bank informing return of cheque unpaid at Exh-25, letter dated 1.1.2008 written by the Sutex Cooperative Bank Limited at Exh-26 and office copy of notice dated 16.11.2007 at Exh-27.
7. The complainant has examined himself at Exh-12.
In the cross examination, the witness admitted that the cheque returned unpaid on 16.10.2007 and that the notice was given on 16.11.2007.
8. The prosecution produced the bank memo at Exh-25. The memo of cheque return dated 16.10.2007 issued by the Gandevi Cooperative Bank Limited indicates that the cheque had returned with the endorsement “exceed arrangement”. The prosecution also produced a letter written by the Sutex Cooperative Bank Limited to the complainant at Exh-26. It indicates that cheque in question was sent for clearing on 10.10.2007 and returned on 20.10.2007. There is no evidence to indicate that the complainant was informed about return of cheque unpaid on 22.10.2007 as claimed by the complainant. In view of bank memo Exh-25, it appears that the complainant was informed on 16.10.2007 that the cheque has returned unpaid. Therefore, presumption can be raised that the complainant was informed about return of cheque unpaid on 16.10.2007. The burden shifted on the complainant to prove that he received the information on 22.10.2007. However, the complainant did not adduce any evidence to support his claim with regard to receipt of memo regarding return of cheque unpaid. Therefore, as the notice Exh-27 was sent on 16.11.2007, it was not in accordance with the provisions of section 138(b) of the Act and hence, the trial Court was justified in acquitting the accused on the ground that notice as required was not served to the accused. Learned advocate for the appellant failed to point out any infirmity in the impugned judgment.
9. In the result, the appeal fails and stands dismissed.
(BANKIM.N.MEHTA, J.) shekhar*