2025 (9) TMI 394

X X   X X   Extracts   X X   X X

Full Text of the Document

X X   X X   Extracts   X X   X X

....rge of the said liability, he issued cheque dated 25.7.2002 for Rs.1,50,000/-. Subsequently, when the complainant presented the cheque for collection, the same was dishonoured due to insufficiency of funds in the account of the accused and in spite of issuance of statutory notice, the accused failed to pay the cheque amount to the complainant. 3. Before the trial court, from the side of the complainant, PWs 1 and 2 were examined and Exhibits P1 to P5 were marked and from the side of the accused, DW1 examined and Exhibit D1 marked. 4. After considering the oral and documentary evidence on record and hearing both sides, the trial court found that the complainant has not succeeded in proving the offence under Section 138 of the N.I Act a....

X X   X X   Extracts   X X   X X

Full Text of the Document

X X   X X   Extracts   X X   X X

.... of Koya road at Puthiyangadi. In Exhibit P4 notice, the address of the accused is shown as Thiruvoth Gayathri, P.O. Chelannur, Kozhikode. Even though, PW2, postman, deposed in chief examination that he informed the accused about the notice, he admitted in cross examination that he has not given any direct intimation to the accused regarding the notice. In cross examination, PW2 deposed as follows : "வேதம் S-N கே.ஜேஜீ வல் ஷவஜ் ஸெவிவரி வலிறு தேள். Koya road, பனிமலைசி வள &#2....

X X   X X   Extracts   X X   X X

Full Text of the Document

X X   X X   Extracts   X X   X X

....014;ன வை 7 வெஸ். வேறு 6)விஸின் Sdo. Unclaimed ஷஸு விஸில் உழைனு .. என் clerk தெளி ஷழ்றுனை, P4 வெஓம் எளக்' வெஸ் ஸவம். வனி விழின் ஐமூவிஸை. (னிறை களக ஜேனின் விவ. கெழ&#3....

X X   X X   Extracts   X X   X X

Full Text of the Document

X X   X X   Extracts   X X   X X

....e has not given any direct intimation to the accused and there is also nothing in evidence as to whom PW2 has given intimation regarding Exhibit P4 notice. Further, the complainant has not made any attempt to prove that the accused knew about the notice and deliberately evaded service to defeat the process of law. 11. In the absence of any material to show that the service of notice has been fraudulently refused by the accused or the accused had knowledge about the notice, it cannot be held that there is proper service of statutory notice as contemplated under Section 138(b) of the N.I Act. 12. The learned counsel for the appellant argued that the evidence of DW1 and Exhibit D1 are not sufficient to arrive at a conclusion that the acc....

X X   X X   Extracts   X X   X X

Full Text of the Document

X X   X X   Extracts   X X   X X

.... (iii) To rebut the presumption, it is open for the accused to rely on evidence led by him or accused can also rely on the materials submitted by the complainant in order to raise a probable defence. Inference of preponderance of probabilities can be drawn not only from the materials brought on record by the parties but also by reference to the circumstances upon which they rely. (iv) That it is not necessary for the accused to come in the witness box in support of his defence, Section 139 imposed an evidentiary burden and not a persuasive burden. (v) It is not necessary for the accused to come inthe witness box to support his defence." 14. In APS Forex Services Pvt. Ltd. v. Shakti International Fashion Linkers an....