JUDGMENT (Oral) 1. Appellant has filed this appeal after grant of leave to file appeal by this Court against the impugned judgment dated 1.2.2000 passed in Criminal Case No. 484/1997 by the learned Judicial Magistrate First Class (Ku. Sunita Balo), Indore whereby acquitting the respondent Sureshchand from the charge under section 138 of the Negotiable Instrument Act (for short 'the Act'). 2. The appellant filed the criminal complaint against the respondent alleging that he advanced loan of Rs. 1,00,000/- (One lac) to respondent on 12.10.1996 and respondent promised to repay the same within one month and issued a cheque of rupees one lakh dated 12.11.1996 bearing number 258954. On the same day, respondent also issued a receipt for taking loan amount from the appellant and given a cheque of State Bank of India, Industrial Estate Branch. The respondent issued an account payee cheque, but appellant wanted the money in cash on the same day, therefore, on his request respondent scored out the cross account payee and made of bearer. On 12.11.1996, appellant produced the cheque, which was returned back on the same day to the appellant/complainant with a remark, "refer to drawer". The account of the respondent was' already. closed in the year 1987. After receiving intimation from the Bank, appellant sent a notice dated 14.11.1996 to the respondent and respondent replied the same on 30.11.1996. Since the respondent did not make the payment within 15 days, the appellant filed the complaint before the trial Court. 3. Learned trial Court registered the complaint under section 138 of the Act and issued notice to the respondent. 4. After appearance of the respondent, the learned" trial Court read over the particulars of the charges which were denied by the respondent. Respondent in his statement recorded under section 313 of the Criminal Procedure Code, has stated that he had no transaction with the appellant and he was not even knowing to him and falsely implicated. The respondent was put to trial. Appellant examined himself as well as witness Vijayvergiya (PW 2), Manager of the Bank and adduced in evidence original cheque (Ex. P-l), receipt of one lac rupees and issuance of cheque by the respondent (Ex. P-2), intimation sent by the Bank to appellant (Ex. P-3), acknowledgement of the notice (Ex. P-4), carbon copy of the notice dated 14.11.1999 (Ex. P-5) and reply sent by the respondent dated 30.11.1996 (Ex. P-6). P-l), receipt of one lac rupees and issuance of cheque by the respondent (Ex. P-2), intimation sent by the Bank to appellant (Ex. P-3), acknowledgement of the notice (Ex. P-4), carbon copy of the notice dated 14.11.1999 (Ex. P-5) and reply sent by the respondent dated 30.11.1996 (Ex. P-6). Respondent has not examined any witness in defence. 5. The learned trial Court after hearing both the parties held that receipt (Hundi) (Ex. P-2) was issued by the respondent and his signature were available at 'A to A' - 'B to B' portion and respondent has not adduced any evidence to establish that these were not his signatures, he could have examined handwriting expert in his defence.' Therefore, the learned trial Court has held that cheque (Ex. P-l) was issued in favour of the appellant by the respondent and respondent also issued receipt (Ex. P-2). The learned trial Court has also held in paragraph 10 of the impugned judgment that the appellant/complainant gave cheque (Ex. PI) of rupees one lac to respondent/accused dated 12.11.1996 and same was presented by the appellant to the concerned Bank. On the same day, i.e., 12.11.1996, same was returned with memo (Ex. P-3) with a note "refer to drawer" since there was no sufficient fund in the account of the respondent. The learned trial Court, dismissed the complaint and acquitted the respondent on the ground that after receiving information of dishonour of the cheque from the Bank, notice was not served upon the respondent by the appellant as per provision under section 138 of the Act. The learned trial Court has held that appellant had not filed postal receipt regarding sending of notice by registered post dated 14.11.1996. Acknowledgement (Ex. P-5) was not bearing any postal seal and who received the notice is also not clear from the acknowledgement as well as acknowledgement is bearing the sender's name as Narendra Patodi and no such person was examined by the complainant. Therefore, the learned trial Court held that the appellant failed to establish that he sent notice (Ex. P-4) to the respondent. 6. Learned counsel for the appellant has submitted that since respondent had sent the reply (Ex. P-6) to the notice sent by the appellant dated 14.11.1996 (Ex. Therefore, the learned trial Court held that the appellant failed to establish that he sent notice (Ex. P-4) to the respondent. 6. Learned counsel for the appellant has submitted that since respondent had sent the reply (Ex. P-6) to the notice sent by the appellant dated 14.11.1996 (Ex. P-5) has clearly established that notice sent by appellant Annexure P-5 was received by the respondent and there is sufficient compliance of the provision of section 138 Proviso (b) of the Act. 7. Learned counsel for the respondent has supported the impugned judgment of acquittal of the respondent and submitted that appellant failed to establish the compliance of mandatory provision regarding sending of notice to the respondent. 8. Having heard the learned counsel for the parties and after perusing entire record, this Court is of the view that learned trial Court has committed error of law as well as fact by holding that appellant failed to establish that he had served notice dated 14.11.1996 upon the respondent. (in the statement of the complainant acknowledgement is described as Annexure P-5 whereas on the acknowledgement the learned trial Court has mentioned Ex. P-4 and notice is described as Annexure P-4, but on the notice the Court has mentioned Annexure P-5). Section 138 Proviso (b) reads as under : "138. Dishonour of cheque for insufficiency, etc., of funds in the account.-- Where any cheque ...............or with both: Provided that nothing contained in this section shall apply unless-- (a) the cheque..........is earlier, (b) the payee or the holder in due course of the cheque, as the case may be, makes a demand for the payment of the said amount of money by giving a notice, in writing to the drawer of the cheque, within fifteen days of the receipt of information by him from the bank regarding the return of the cheque as unpaid, and (c) the drawer...........the said notice. 9. In section 138 Proviso (b) or anywhere in the enactment, mode of service of notice is not prescribed. When respondent has accepted the receipt of notice dated 14.11.1996 sent to him by Advocate Shri B.K. Vaidya on behalf of the appellant and also sent the reply to the Advocate of the appellant through his Advocate Shri Devdatta Govinda Pathak Annexure P-6 dated 30.11.1996, there was no need of any other proof regarding sending of notice Annexure P-4 (Annexure P-5). This is the admitted position and sending of reply (Eh. P-6) has not been denied by the respondent in his accused statement recorded under section 313 of the CrPC. The statutory requirement is to serve the notice upon the drawer of the cheque within 15 days (as the law then was) from the date of receipt of information by him from the Bank regarding return of the cheques as unpaid and this has been complied with by the appellant. Cheque was received back with information (Ex. P-3) on 12.11.1996 thereafter notice was sent demanding cheque amount of rupees one lakh within 15 days from the date of receipt of notice, sent to the respondent on 14.11.1996 and same was replied by the respondent (Annexure P-6) dated 30.11.1996 through his Advocate Shri Pathak and in reply the respondent denied the raising of loan amount of rupees one lac and mentioned some other story regarding issuance of cheque, which is not the subject-matter in this appeal. In reply (Ex. P-6), addressed to the Advocate Shri Vaidya of appellant, it is mentioned that this reply was given to the notice received by respondent dated 14.11.1996 sent by his Advocate Shri Vaidya. 10. In view of the foregoing discussion, this appeal ~s allowed. The impugned order of acquittal is hereby set aside. The respondent is found guilty under section 138 of the Act and sentence to S.I. for three months and pay compensation of Rs. 1,10,000/- (Rupees one lakh ten thousand). Respondent is directed to surrender him self before the trial Court on 7th July, 2008 and the trial Court is directed to send the respondent to jail for serving out the jail sentence. On failure of the respondent to appear before the trial Court, the trial Court is directed to take suitable action against him as well as his surety under intimation to this Court.