TaxTMI 
TaxTMI 
2022 (3) TMI 1049
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....a preferred an appeal in the Court of Session which was heard by the learned Addl. Sessions Judge, Jajpur Road in Criminal Appeal No.03 of 2019 and the learned Appellate Court vide impugned judgment and order dated 08.02.2021, allowed the appeal and set aside the judgment and order of conviction passed by the learned trial Court. This leave petition has been filed by the petitioner Prafulla Kumar Prusty @ Prafulla Chandra Prusty challenging the order of acquittal passed by the learned Appellate Court in Criminal Appeal No.03 of 2019 as per the impugned judgment and order dated 08.02.2021. The prosecution case, in short, is that the petitioner and the opposite party belong to same village. The opposite party had borrowed a hand loan of Rs. 4,00,000/- (four lakhs) from the petitioner to purchase a truck with a promise to repay the same within a month. After several demands, the opposite party issued a cheque bearing no.160643 dated 08.01.2013 in favour of the petitioner to discharge his liability. The petitioner presented the said cheque in the Bank for encashment but it returned back with an endorsement "insufficient funds" on 09.01.2013. A demand notice was issued on behalf o....
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....side and the judgment passed by the learned trial Court should be restored. In this case, there is no dispute that the cheque in question bearing no.160643 dated 08.01.2013 was issued by the opposite party in favour of the petitioner which was presented in the State Bank of India, Panikoili Branch for encashment on the very next day i.e., 09.01.2013 and on the very day, it was also returned back with an endorsement as dishonored on account of "insufficient funds". The demand notice was sent through the Advocate of the petitioner to the opposite party on 18.01.2013. Neither the postal acknowledgement nor the envelop containing the demand notice returned. No response also came from the opposite party relating to such demand notice. The complaint petition was filed on 16.02.2013 before the learned J.M.F.C., Jajpur Road. The crux for consideration before this Court is whether the complaint petition was filed within the prescribed period or it was not a complaint in the legal sense as it was filed prior to the date on which cause of action arose. Section 138 of the N.I. Act reads as follows:- "Section 138 of the N.I. Act 1881: Dishonour of cheque for insufficienc....
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....escribed period, if the complainant satisfies the court that he had sufficient cause for not making a complaint within such period. (c) no court inferior to that of a Metropolitan Magistrate or a Judicial Magistrate of the first class shall try any offence punishable under Section 138. (2) The offence under Section 138 shall be inquired into and tried only by a court within whose local jurisdiction,- (a) if the cheque is delivered for collection through an account, the branch of the bank where the payee or holder in due course, as the case may be, maintains the account, is situated; or (b) if the cheque is presented for payment by the payee or holder in due course, otherwise through an account, the branch of the drawee bank where the drawer maintains the account, is situated. Explanation.-For the purposes of clause (a), where a cheque is delivered for collection at any branch of the bank of the payee or holder in due course, then, the cheque shall be deemed to have been delivered to the branch of the bank in which the payee or holder in due course, as the case may be, maintains the account." In this case, since neither the postal ackn....
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....so to Section 138 of the Act stands complied with. It is needless to emphasise that the complaint must contain basic facts regarding the mode and manner of the issuance of notice to the drawer of the cheque. It is well settled that at the time of taking cognizance of the complaint under Section 138 of the Act, the Court is required to be prima facie satisfied that a case under the said Section is made out and the aforenoted mandatory statutory procedural requirements have been complied with. It is then for the drawer to rebut the presumption about the service of notice and show that he had no knowledge that the notice was brought to his address or that the address mentioned on the cover was incorrect or that the letter was never tendered or that the report of the postman was incorrect. In our opinion, this interpretation of the provision would effectuate the object and purpose for which proviso to Section 138 was enacted, namely, to avoid unnecessary hardship to an honest drawer of a cheque and to provide him an opportunity to make amends. 15. As noticed above, the entire purpose of requiring a notice is to give an opportunity to the drawer to pay the cheque amount within ....
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....rved in K. Bhaskaran -Vrs.- Sankaran Vaidhyan Balan: (1999) 7 S.C.C. 510, if the giving of notice in the context of Clause (b) of the proviso was the same as the receipt of notice a trickster cheque drawer would get the premium to avoid receiving the notice by adopting different strategies and escape from legal consequences of section 138 of the Act. 17. In the instant case, the averment made in the complaint in this regard is: Though the complainant issued lawyer's notice intimating the dishonour of cheque and demanded payment on 4.8.2001, the same was returned on 10.8.2001 saying that the accused was out of station. True, there was no averment to the effect that the notice was sent at the correct address of the drawer of the cheque by registered post acknowledgement due. But the returned envelope was annexed to the complaint and it thus, formed a part of the complaint which showed that the notice was sent by registered post acknowledgement due to the correct address and was returned with an endorsement that the addressee was abroad. We are of the view that on facts in hand the requirements of section 138 of the Act had been sufficiently complied with and the decision of ....