Judgment ( 1. ) THE appellant/complainant has filed this appeal after grant of leave to file appeal against the impugned judgment of acquittal of respondent herein passed by learned III AS J, Indore in Criminal Appeal No. 56/01, dated 1-9-2001 arising out of judgment of conviction of respondent Devendra Trivedi, passed by learned Judicial Magistrate First Class, Indore (Ku. Sunita Barlo) in Criminal case No. 1099/00, convicting the respondent under Section 138 of the negotiable Instrument Act (for short "the Act") sentenced to RI for six months and fine of Rs. 3,000/- (Three Thousand) and compensation amount of rs. 12,000/- (Twelve Thousand) was ordered to be given to the appellant. ( 2. ) THIS is the appeal of the year 2001. Respondent is represented by his Advocate but on 14-2-2008 appeal was listed for final hearing and the advocates of both the parties were not present, therefore adjourned for two weeks. It was again listed on 25-3-2008 and on this date Counsel for the appellant Vijay Sharma was present and Counsel for the respondent was not present, therefore, this Court ordered for issuance of Special Post Card. (SPC) intimating the respondent, who is on bail for final hearing of this appeal on 8-4-2008. In spite of this neither the Counsel for the respondent nor the respondent is present today in first half of the day and also in second half. In view of Supreme Court judgments rendered in cases oikishan Singh Vs. State of M. P. , (1996) IX SCC 372, Bani Singh and others Vs. State of U. R, AIR 1996 SC 2439 and Dharampal and others Vs. State of U. R, Judgment Today 2008 (I) SC 172, this Court heard this appeal on merit in absence of the respondent as well as his advocate. In case of Bani Singh (supra), in Paragraph 16 Supreme Court has observed as under:- Para 16. Such a view can bring about a stalemate situation. The appellant and his lawyer can remain absent with impunity, not once but again and again till the Court issues a warrant for the appellants presence. A complaint to the Bar Council against the lawyer for non-appearance cannot result in the progress of the appeal. If another lawyer is appointed at State cost, he too would need the presence of the appellant for instructions and that would place the court in the same situation. A complaint to the Bar Council against the lawyer for non-appearance cannot result in the progress of the appeal. If another lawyer is appointed at State cost, he too would need the presence of the appellant for instructions and that would place the court in the same situation. Such a procedure can, therefore, prove cumbersome and can promote indiscipline. Even if a case is decided on merits in the absence of the appellant, the Higher Court can remedy the situation if there has been a failure of justice. This would apply equally if the accused is the respondent for the obvious reason that if the appeal cannot be disposed of without hearing the respondent or his lawyer, the progress of the appeal would be halted. " ( 3. ) THE appellant filed a criminal complaint before the learned Judicial magistrate First Class, Indore on 30-3-1999. His case was that he and respondent were friends. On 30-12-1998, respondent came to his house and borrowed cash amount of Rs. 12,000/- for fulfilling the need of his family. Respondent issued post dated cheque No. 987721, dated 15-1-1999 towards the repayment of loan amount. On 14-1 -1999 respondent approached the appellant and requested him for producing the cheque for encashment on 25-1-1999 in place of 15-1-1999. The appellant submitted the cheque for encashment in nagrik Sahkari Bank, 12, Subhash Marg, Indore, but same was not honoured and returned back on 30-1-1999 to the appellant with remark of stop payment. The appellant sent a notice through his Advocate dated 13-2-1999 demanding the cheque amount, but same was returned back by the respondent deliberately knowing well about the notice and appellant received the envelope on 27-2-99 with a remark that ad-dressy was not available in time. ( 4. ) THE learned Trial Court after recording the statement of P. J. Malviya, Dy. Manager, State Bank of Indore, Branch - Cloth Market, Indore and himself, under Section 200 of the Cr. PC, passed the order dated 7-7-99 for registration of complaint against the respondent under Section 138 of the Act. The respondent appeared on 6-9-99 and furnished the bail and surety bond. The appellant examined himself, witness Inamulha (C. W. 2) and Jugal Kishore tamrakar (C. W. 3), whereas respondent did not examine any witness in defence. Learned Trial Court, after hearing both the parties, convicted the respondent as mentioned hereinabove. The respondent appeared on 6-9-99 and furnished the bail and surety bond. The appellant examined himself, witness Inamulha (C. W. 2) and Jugal Kishore tamrakar (C. W. 3), whereas respondent did not examine any witness in defence. Learned Trial Court, after hearing both the parties, convicted the respondent as mentioned hereinabove. Against the judgment of conviction, he went up in appeal and learned Lower Appellate Court allowed the appeal, setting aside the judgment of conviction passed by the Trial Court. ( 5. ) LEARNED Counsel for the appellant has submitted that Lower appellate Court erred in relying the version of the respondent regarding issuance of letter (Exh. D-1) to his Bank for stop payment and there was no evidence led by the appellant about service of the notice on respondent. ( 6. ) HAVING heard the learned Counsel for the appellant and after perusing the entire record, this Court is of the view that learned Lower appellate Court has committed grave error of law in placing reliance on letter (Exh. D-1) containing recital that the cheque was to be given by the respondent to Dongrelal Rathi, but because of pendency of case in the Court cheque was issued in the name of the appellant, i. e. , Mujaffar Hussain for payment of property tax and charges of water and electricity and it was issued in the wrong name, therefore, he directed the bank not to honour the cheque. Witness Jugal kishore Tamrakar (C. W. 3), Assistant Manager, has nowhere accepted in cross-examination about receiving of letter (Exh. D-1 ). He has successfully stated that he could not say whether letter (Exh. D-1) was received or produced before his bank or not and he was also not able to identify the signature regarding acknowledgment of receipt of original letter, copy of which was Exh. D-1 filed by the respondent. The appellant in cross-examination in Para 8 denied the defence suggestion that respondent issued the said cheque towards the payment of price of land (plot) and for depositing the payment in Municipal corporation. He has also stated specifically that he was not required to deposit the money in Municipal Corporation and he was not knowing Dongre Lal Rathi. ( 7. ) THE appellant Mujaffar Hussain has stated specifically that on 30-12-1998, respondent who was his friend came to his house and requested for the loan of Rs. 12,000/ -. He has also stated specifically that he was not required to deposit the money in Municipal Corporation and he was not knowing Dongre Lal Rathi. ( 7. ) THE appellant Mujaffar Hussain has stated specifically that on 30-12-1998, respondent who was his friend came to his house and requested for the loan of Rs. 12,000/ -. Appellant gave cash amount of Rs. 12,000/- for 15 days and respondent gave him post dated cheque (Annexure P-1), dated 15-1-1999. After 15 days, respondent again approached the appellant and requested for production of the cheque after 10 days for encashment. The appellant accepted his request and submitted the cheque in the bank on 25-1-1999. The cheque was dishonoured and returned back with letter (Annexure P-2), because, the respondent stopped the payment. After return of cheque, appellant sent registered notice acknowledgment due, copy whereof is Annexure P/3-C and registered envelope is Exh. P-4. Envelope was open, containing notice (Exh. P-5) and Exh. P-6 is the postal receipt regarding sending of notice by registered post, Exh. P-7 is the acknowledgment due. Envelop of registered notice is clearly containing recital that respondent was not available at the time of delivery, therefore, same was returned back. The concerned postman tried to deliver the notice on several dates, i. e. , on 13-2-99 to 25-2-99. The notice was sent on the following ad-dressy of the respondent:- "shri Devendra Trivedi, s/o Shri Satendra Nath Trivedi, r/o 26/1, Chhipa Bakhal, Indore (M. P.)". Same is the address of respondent mentioned in the complaint. The learned Lower Appellate Court has held in Paragraph 18 of impugned judgment that the appellant has failed to establish that notice was duly served upon the respondent and the learned Magistrate should have not drawn inference regarding service of notice. In the considered view of this Court, the learned lower Appellate Court has failed to consider the provision under Section 27 of the General Clauses Act and Section 114 (III) (f) of the Evidence Act regarding presumption of service of notice, if same was sent by registered post on correct address of the drawer of the cheque. In judgment of three Judges Bench of the supreme Court in case of C. C. Allvi Haji Vs. In judgment of three Judges Bench of the supreme Court in case of C. C. Allvi Haji Vs. Palapetty Muhammad and another, (2007) 6 Supreme Court Cases 555, Justice D. K. Jain, speaking for the Bench has considered the provisions of Section 138 of the Act regarding sending of notice as well as provision under Section 27 of the General Clauses Act and section 114 of the Evidence Act exhaustively and has observed in Paragraphs 15 and 16 as under:-15. Insofar as the question of disclosure of necessary particulars with regard to the issue of notice in terms of Proviso (b) of Section 138 of the Act, in order to enable the Court to draw presumption or inference either under Section 27 of the GC Act or Section 114 of the Evidence Act, is concerned, there is no material difference between the two provisions. In our opinion, therefore, when the notice is sent by registered post by correctly addressing the drawer of the cheque, the mandatory requirement of issue of notice in terms of clause (b) of Proviso to Section 138 of the Act stands complied with. It is needless to emphasise that the compliant must contain basic facts regarding the mode and manner of the issuance of notice to the drawer of the cheque. It is well settled that at the time of taking cognizance of the complaint under Section 138 of the act, the Court is required to be prima facie satisfied that a case under the said Section is made out and the afore-noted mandatory statutory procedural requirements have been complied with. It is then for the drawer to rebut the presumption about the service of notice and show that he had no knowledge that the notice was brought to his address or that the address mentioned on the cover was incorrect or that the letter was never tendered or that the report of the postman was incorrect. In our opinion, this interpretation of the provision would effectuate the object and purpose for which proviso to Section 138 was enacted, namely, to avoid unnecessary hardship to an honest drawer of a cheque and to provide him an opportunity to make amends. 16. In our opinion, this interpretation of the provision would effectuate the object and purpose for which proviso to Section 138 was enacted, namely, to avoid unnecessary hardship to an honest drawer of a cheque and to provide him an opportunity to make amends. 16. As noticed above, the entire purpose of requiring a notice is to give an opportunity to the drawer to pay the cheque amount within 15 days of service of notice and thereby free himself from the penal consequences of Section 138. In Vinod Shivappa, this Court observed : (SCC p. 462, Para 13) "one can also conceive of cases where a well-intentioned drawer may have inadvertently missed to make necessary arrangements for reasons beyond his control, even though he genuinely intended to honour the cheque drawn by him. The law treats such lapses induced by inadvertence or negligence to be pardonable, provided the drawer after notice makes amends and pays the amount within the prescribed period. It is for this reason that clause (c) of Proviso to Section 138 provides that the section shall not apply unless the drawer of the cheque fails to make the payment within 15 days of the receipt of the said notice. To repeat, the proviso is meant to protect honest drawers whose cheques may have been dishonoured for the fault of others, or who may have genuinely wanted to fulfil their promise but on account of advertence or negligence failed to make necessary arrangements for the payment of the cheque. The proviso is not meant to protect unscrupulous drawers who never intended to honour the cheques issued by them, it being a part of their modus operandi to cheat unsuspecting persons. " ( 8. ) IN the case at hand as mentioned hereinabove, notice was sent on correct address of the respondent. It was also within time as per provision under section 138 Proviso (b) and appellant in his statement has specifically stated that respondent got returned the notice and did not pay the amount. In cross-examination even suggestion was not given to the appellant that he had not sent any notice to the respondent and respondent had no knowledge of sending of notice to him and he was always available on a given address, but postman never approached him for service of notice. In cross-examination even suggestion was not given to the appellant that he had not sent any notice to the respondent and respondent had no knowledge of sending of notice to him and he was always available on a given address, but postman never approached him for service of notice. In the light of clear factual position in the instant case, presumption has been rightly drawn by the learned Magistrate regarding service of notice to respondent. ( 9. ) THE respondent has utterly failed to establish that cheque was given to the appellant towards the agreement of land purchased or payment to taxes of municipal Corporation by adducing cogent and reliable evidence. Under section 139of the Act, there is presumption in favour of holder of cheque that "it shall be presumed, unless the contrary is proved, that the holder of a cheque received the cheque of the nature referred to in Section 138 for the discharge, in whole or in part, of any debt or other liability". ( 10. ) CONSEQUENTLY on the basis of foregoing discussions, this appeal is allowed, impugned judgment and finding of the learned Lower Appellate Court dated 1-9-2001 in Criminal Appeal No. 56/2001 are hereby set aside and judgment and order passed by the learned Judicial Magistrate First Class, Indore dated 12-2-2001 in Criminal Case No. 1099/00 are hereby restored. Office is directed to send SPC to the respondent Devendra Trivedi to appear before the learned Trial Court on 23rd June, 2008 and the learned Trial court is directed to send him jail for serving out the jail sentence. On failure of the respondent Devendra Trivedi to appear before the learned Trial Court on a given date, the learned Trial Court is directed to take suitable action against him as well as his surety, under intimation to this Court.