Arun Kumar Bhattacharya, JJ. ( 1 ) THE present appeal is directed against the judgment and order of acquittal passed by the learned Metropolitan Magistrate, 17th Court at Calcutta in complaint Case No. C/417 of 1994 (T. R. 396 of 1994) under Section 138 of the Negotiable Instruments Act, 1881, on 31/5/2000. ( 2 ) THE prosecution case, in short, is that the accused/respondent owed a sum of Rs. 11,000. 00 to the complainant/appellant for which he issued a cheque bearing No. 008062 dated 13/9/1994 for the said sum of Rs. 11,000. 00 towards discharge of his existing liability. The complainant/appellant deposited the said cheque with his banker on 17/9/1994 but the same was dishonored on the ground of "insufficient fund". A notice under Section 138 of the Negotiable instruments Act, 1881 was issued on 28/9/1994 to the accused/respondent demanding payment of the sum within fifteen days from the date of receipt thereof but the accused/respondent refused the same on 10/10/1994 and thus failed to comply with the said notice. Hence, the accused/respondent was charged under Section 138 of the said Act. ( 3 ) THREE witnesses were examined on behalf of the prosecution, while one witness was examined on behalf of the defence and after consideration the facts, circumstances and materials on record, the learned Court below found the accused/respondent not guilty and acquitted him of the charge. ( 4 ) BEING aggrieved by and dissatisfied with the said order of acquittal, the complainant/appellant has preferred the present appeal. ( 5 ) MR. Gupta, learned Counsel appearing for the appellant, on referring to the cheque (Exbt. 4) and the evidence of P. Ws and D. W. 1 contended that when it is undisputed that the accused/respondent issued the cheque and there is no material to show that the other two brothers of the accused /respondent took loan, the findings of the Court below that the liability of the accused/respondent for payment extends to one-third and not full is wholly unsupported by any evidence whatsoever. Relying upon the case of I. C. D. S. Ltd. v. Beena Shabeer, reported in 2002 AIR S. C. W. 3385 : 2002 C Cr LR (SC) 1080, Mr. Relying upon the case of I. C. D. S. Ltd. v. Beena Shabeer, reported in 2002 AIR S. C. W. 3385 : 2002 C Cr LR (SC) 1080, Mr. Gupta further contended that an the issue regarding the coextensive liability of the guarantor and the principal debtor is totally out of the purview of Section 138 of the Act, the said plea of the accused/respondent is not legally tenable. ( 6 ) MR. Saha, learned Counsel for the accused/respondent, on the other hand, contended that two brothers of his client took loan from the complainant firm for purchasing a vehicle and due to non-payment of the instalment amount @ Rs. 11,000/- when the complainant firm took back the vehicle, his client with his two brothers went to the office of the complainant firm and executed a loan agreement in respect of which his client stood as a guarantor and as such, the liability of his client for payment is one-third of the amount and not full,. ( 7 ) IT is only in glaring cases of injustices resulting from some violation of fundamental principles of law by the trial Court that the High Court is empowered to set aside the order of acquittal and direct a retrial of the acquitted accused. The power should be exercised sparingly and with great care and caution. In the case of Chinnaswamy v. Andhra Pradesh, reported in AIR 1962 sc 1788 and in subsequent decisions it was held that the power of the High court to set aside an order of acquittal at the instance of a private party is to be exercised only in exceptional cases of glaring defect of procedure or manifest error on a point of law resulting in flagrant miscarriage of justice. As subsection (3) of Section 401 forbids the conversion of a finding of acquittal into one of conviction it places a limitation on the power of the High Court to set aside an acquittal order which should be exercised only in exceptional cases. As subsection (3) of Section 401 forbids the conversion of a finding of acquittal into one of conviction it places a limitation on the power of the High Court to set aside an acquittal order which should be exercised only in exceptional cases. Such cases may be where (i) the trial Court has no jurisdiction to try the case but has still acquitted the accused, or (ii) the appellate Court has wrongly held the evidence admitted by the trial Court to be inadmissible, or (iii) material evidence has been overlooked either by the trial Court or appellate Court or (iv) the acquittal is based on a compounding, of the offences, invalid under the law etc. These categories are merely illustrative and there may be other cases of similar nature when retrial or rehearing of appeal may be ordered. ( 8 ) UNDISPUTEDLY, the cheque bearing No. 008062 dated 13. 9. 1994 (Exbt. 4) for a sum of Rs. 11,000/- drawn on Bank of India in favour of the complainant firm was issued by the accused/respondent and the same when presented by the complainant firm for encashment in its Bank, Central Bank of india, was returned with the remark "insufficient fund". There is also no dispute that the demand notice (Exbt. 1) sent by the complainant firm to the accused/respondent by Registered Post with A/d was returned with the Postal remark 'refused'. It is well settled that the refusal to accept the notice when tendered amounts to service of notice. In the circumstance, "the general presumption that a person who refused to receive a notice or returned a notice is deemed to be served with that notice would apply". In this context, the observation of v. Raja Kumari v. P. Subburama Naidu, reported in 2004 AIR S. C. W. 6344 is reproduced hereunder:"the context envisaged in Section 138 of the Act invites a liberal interpretation for the person who has statutory obligation to give notice. If a strict interpretation is given that the drawer should have actually received notice for the period of fifteen days to start running no matter the payee sent the notice on the correct address, a trickster cheque drawer would get a premium to avoid receiving the notice by different strategies, and he could escape from legal consequences of Section 138 of the Act. It must be borne in mind that the Court should not adopt an interpretation which helps a dishonest evader and clips on honest payee as that would defeat the very legislative measure. The payee has statutory obligation to give notice because he is presumed to be the loser in the transaction. Payee has to make demand by "giving notice" in writting. It that was the only requirement to complete the offence on the failure of the drawer to pay cheque amount within fifteen days from the date of such "giving", the travails of the prosecution would have been very much lessoned. But the legislature say that failure on the part of the drawer to pay amount should have been within fifteen days "of the receipt" of the said notice. It is, therefore, clear that giving notice in the context is not the same as receipt of notice. Giving is a process of which receipt is the accomplishment, It is for the payee to perform the former process by sending the notice to the drawer at correct address. Once it is dispatched his part is over and the next depends on what sendee does". ( 9 ) IT is the specific evidence of P. W. 1 that the accused/respondent took a loan of Rs. 11,000/- from their firm on 13. 4. 1994 and issued the said cheque and his brothers stood as guarantors. The accused/respondent who examined himself as D. W. 1 said that the loan was taken by his two brothers and he stood as a guarantor. But, no document in this regard has been produced. The observation of the learned Court below appears to be self-contradictory since he found the accused/respondent and his two brothers took the loan but at the same time he observed that the receipt (Exbt. 5) does not indicate who got the loan. If that be so, on what basis he held that three persons received the loan is net clear. It is further observed that the receipt is defective as there is no indication as to who got the loan. The learned Court below does not appear to have applied his mind to the notice (Exbt. 5) where it is specifically mentioned in the last but one paragraph that Md. It is further observed that the receipt is defective as there is no indication as to who got the loan. The learned Court below does not appear to have applied his mind to the notice (Exbt. 5) where it is specifically mentioned in the last but one paragraph that Md. Idrish and sakhil Ahmed have put their signatures below as guarantors to repay the above loan which is quite in consonance with the above evidence of P. W. 1, accordingly, the story of taking loan by two brother's of the accused/respondent, as contended by the accused, is totally belied. Therefore, the findings of the learned Court below that the demand notice is defective on that ground is unsustainable. So far as the above contention of the learned Counsel for the accused/respondent regarding execution of agreement etc. , the same being totally foreign to the case unsupported by any evidence does not require any consideration. ( 10 ) FURTHERMORE, Section 139 of the Act creates a presumption in favour of the holder of a cheque. In the case of Goaplast (P) Ltd. v. C. U. D' Souza, reported in 2003 SCC (Cr) 603:2004 C Cr LR (SC) 113, it was held that it has to be presumed that a cheque is issued in discharge of any debt or other liability. The presumption can be rebutted by adducing evidence and the burden of proof is on the person who wants to rebut the presumption. This presumption coupled with the object of Chapter XVII of the Act which is to promote the efficacy of banking operation and to ensure credibility in business transactions through Banks persuades us to take a view that by countermanding payment of postdated cheque, a party should not be allowed to get away from the penal provision of Section 138 of the Act. A contrary view would render Section 138 a dead letter and will provide a handle to persons trying to avoid payment under legal obligations undertaken by them through their own acts which in other words can be said to be taking advantage of one's own wrong. ( 11 ) IN the light of the above discussion, the view taken by the learned court below is not at all tenable, and the impugned judgment and order are not sustainable. ( 12 ) ACCORDINGLY, the appeal be allowed. The impugned judgment and order of acquittal be set aside. ( 11 ) IN the light of the above discussion, the view taken by the learned court below is not at all tenable, and the impugned judgment and order are not sustainable. ( 12 ) ACCORDINGLY, the appeal be allowed. The impugned judgment and order of acquittal be set aside. ( 13 ) LET the matter be remanded to the learned Court below with a direction to dispose of the proceeding, bearing in mind the observation made above, and in accordance with the law after hearing arguments of both sides, as expeditiously as possible, preferably within a period of three months from the date of receipt of this record.