TaxTMI 
TaxTMI 
2015 (9) TMI 1728
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....que No. 168624 dated 11.10.2010 for Rs. 1,00,000/-. 3. In complaint case No. 84 of 2011 cheque No. 199167 dated 11.10.2010 for Rs. 15,500/-." 2. Thus, the total amount involved was Rs. 1,40,500/-. Three separate cases were filed as I have already told regarding the dishonoured all those three cheques. The common case of the complaint before the trial court was that those three cheques as mentioned above were issued by the private respondent on the dates mentioned above for the amount also mentioned above in discharge of existing liability. Those cheques were marked as Exbt. 1B, 1A and 1 respectively. Those cheques were presented by the present appellant to his banker. But, unfortunately, all the three cheques bounced with the remark either "insufficient fund" or "payment stop" by the drawer. Thereafter, notices were issued under Section 138B of the N.I. Act to the accused in respect of the three cheques but, unfortunately, original notices could not be produced before the learned trial court and only photo copies were produced and as such those were marked as X, X/1 and X/2 for identification. The returning memos were, however, marked Exbt. 2 series. A.D. cards were also placed ....
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....t by the appellant/complainant to the respondents but because of the endorsement of the postal peon, the service could not be said to have been effected. In our view, the High Court was not justified in holding that service of notice could not found to be valid". 6. In that case, the Apex Court also relied upon its own decision reported in 1999 (7) SCC 510 (K. Bhaskaran v. Vaidhyan Balan And Anr.) wherein the Apex Court observed that " The context of Section 138-B of the Negotiable Instruments Act invites a liberal interpretation favouring the person who has the statutory obligation to give notice under the Act because he must be presumed to be the loser in the transaction and provision itself has been made in his interest and if a strict interpretation is asked for that would give a handle to the trickster cheque drawer. It is also well settled that once notice has been sent by registered post with acknowledgement in a correct address, it must be presumed that the service has been made effective. We do not find from the endorsement of the postal peon that the postal peon was at all examined". 7. In that decision the Apex Court also relied upon another judgment as reported in 200....
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....ved in a case under Section 138 of the N.I. Act. He frankly submitted that though in the judgment of the Trial Court, there is no reference that the learned Magistrate also dealt with C Case No. 84 of 2011 and 85 of 2011 but Mr. Mukherjee took me to the order of the learned Trial Court dated 12-07-2011 to say that clubbing order of those two cases were rightly made and the said order being not challenged before any forum, it was made absolute. Thus, he did not raise any dispute on that score regarding the clubbing of those cases under Section 219 of the Cr.P.C. 11. Learned Advocate took me to the Single Bench decision of this Court as reported in 1995 (II) CHN 445 as passed in Shibu Chakraborty v. Smt. Arati Poddar & Anr., wherein this Court observed that service of Demand Notice is an essential ingredient of the offence under Section 138 of the N.I. Act, 1881 and failure to comply with such demand notice is also essential ingredient to the offence. It was further observed by the learned Single Judge that legal factors cannot be ignored in any prosecution. In that case, before the learned Single Judge, it was not known what was the lawyer's letter which was sent to the accused....
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....ght to his notice as decided by the Apex Court in Devender Kumar Singla (supra). In that decision it was further held that absence of any suggestion during cross-examination cannot be made up by a statement under Section 313 Cr.P.C. as at stage the prosecution does not get an opportunity to question the accused about his stand in the statement under Section 313 Cr.P.C. 16. Now the question is what was the evidence in chief as regards service of notice. "8. That fact of such dishonor of the three cheques had been communicated to the accused person through legal notice dated 24.11.2010 issued by my Advocate Dipta Bhanu Dutt, posted on 26.11.2010 at the address of the accused given in the cause title through Speed Post with A/D demanding the payment of the amount. These are said three Xerox copies of notice given by my advocate on my instruction and it contains the signature of my advocate Dipta Bhanu Dutt whose signature I know is being marked as Exhibit-5 series. The said notices were given to the accused at the address of the accused under Section 138 of the Negotiable Instruments Act 1881 as amended up-to-date to bring to his knowledge about the dishonor of the cheques and requ....
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....nkaran Vaidyan Balan and Another. The holder of a cheque is backed by the presumption of Section 139 of the N.I. Act. It is a rebuttable presumption to be rebutted by the other side. 19. Thus this court is of the clear view that the accused appellant duly signed those A/D cards and as such he duly received the original notices, the photo copies of which were marked as X series for identification. It is true that photocopies are inadmissible in evidence, unless admitted, but in the instant case there was no question of production of the originals as those were in the possession of the accused respondent. As he denied the receipt of the notice there was no question of issuance of notice on him to produce the originals. 20. As this court has held that the accused respondent duly received the notice the Single Bench decision of this court in Shibu Chakraborty (supra) cannot apply in this case. The complainant could have produced the original postal receipts showing posting of the speed post letters to the accused respondent to get the benefit of M/s. Indo Automobiles (supra) but, the non-production of those cannot clinch the issue in favour of the respondent. 21. Thus this court is ....