N. K. SABARWAL Vs. RAUF KHAN

JUDGEMENT

(1.) THIS petition is directed under section 378 (4) of CrPC for seeking special leave to appeal against the judgment dated 19.1.2006 passed by Judicial Magistrate, First Class Jabalpur in Complaint Case No. 97/05 acquitting the respondent from the charge punishable under section 138 of Negotiable Instruments Act, 1881 (in short "the Act")

(2.) THE facts giving rise to this petition are that the complainant being a dealer of medicine was under receipt of cheque No. 8785311 for sum of Rs. 1,30,000/- from the respondents in connection of his business transaction. One affidavit was also sworn by the respondent in order to explain the circumstance for payment through cheque. The cheque was deposited with his Banker i.e. Central Bank of India for collection but the same was returned unpaid firstly on 25.9.2002, and then on 13.11.2002, 4.12.2002 and lastly on 21.12.2002 but on account of insufficient fund in the account of respondent same was dishonoured and returned to the applicant with the memo of the Bank. Thereafter as alleged on 28.12.2000 a registered notice under section 138 (b) of the Act was sent to the respondent on behalf of the applicant, but in the stipulated period payment of cheque was not made to the applicant. Hence, the said complaint was preferred for the offence under section 138 (b) of the Act. On taking cognizance against the respondent under the aforesaid section, he appeared in the trial Court. After recording the plea trial was held in which the applicant has examined himself and one other witness namely Shri Sharad Kumar Rakesh while two witnesses namely Shri Vijay Bhan Singh and Shri R.P. Dubey, Sub Post Master were examined by the respondent on his defence.

(3.) SHRI Narendra Chouhan, learned counsel for the applicant has submitted that on receiving the information about dishonouring the cheque on 21.12.2002, he sent a notice to the respondent through registered post as per requirement of section 138 (b) of the Act. A copy of such notice is exhibited as Ex. P-9. The same was served by Ex. P-5. The acknowledgement due receipt. Hence, aforesaid provisions was fully complied with but the trial Court has committed grave error in holding that there is no reliable evidence either for sending the notice or for service of the same. According to him even in the lack of seal of post office on acknowledgement due receipt it was reliable and admissible because this mistake was not committed by the applicant. His further submission was that in view of acknowledgement due receipt, postal receipt for sending the aforesaid notice was not necessary to produce or proved on the record. Hence, even in the absence of it the trial Court was bound to draw inference that notice sent by the applicant was duly served in accordance with the provisions of section 138 of the Act but on wrong interpretation and appreciation the respondent was acquitted by the impugned judgment and prayed for granting special leave to appeal.