JUDGMENT S.C. Das, J. 1. By this criminal appeal, filed under Section 378 of the Code of Criminal Procedure, the appellant, named above, challenged the judgment & order of acquittal, dated 14.2.2007, passed by learned Judicial Magistrate 1st Class, Court No. 1, Agartala, West Tripura in C.R. Case No. 34 of 2006 whereby the learned Magistrate acquitted the respondent (accused) from the charge framed against him under Section 138 of Negotiable Instruments Act (for short N.I. Act). Heard learned counsel, Mr. D.C. Roy for the appellant and learned counsel, Mr. D Bhattacharjee for the respondent. Learned Additional Public Prosecutor, Mr. R.C. Debnath has also been heard though the State has not been made a party in the appeal. 2. Brief fact:- The appellant (complainant) and the respondent (accused) are full-blood brothers. The appellant filed a complaint before the learned Chief Judicial Magistrate, Agartala, West Tripura, on 03.01.2006, alleging inter alia that the accused is his full-blood brother and the accused is the proprietor of M/s. S.S. Electronics situated at 153 H.G.B. Road, Agartala and deals with the business of electronics goods such as TV, Fridge, Fan etc. The accused approached the complainant to provide him a loan of Rs. 1,00,000/- (Rupees one lakh) for his business purpose in the month of August, 2003 with an assurance that he will repay the amount within 2(two) years. Since the accused is a full-blood brother, the complainant agreed and accordingly an amount of Rupees one lakh was advanced to the accused. The accused issued a cheque of Rupees one lakh in favour of the complainant vide Cheque No. 3389013 drawn on Punjab & Sind Bank assuring repayment. According to the complainant, the cheque was drawn on 02.09.2005. The accused requested the complainant not to deposit the Cheque, at once and therefore, the complainant was waiting till 25.11.2005 as per request made by the accused. On 26.11.2005, the complainant demanded the amount but the accused refused to make payment. Thereafter, the complainant deposited the cheque, in his bank account on 30.11.2005, with Agartala Branch of UCO Bank A/C No. SB-28035 and the bank informed him on 01.12.2005 that the cheque was dishonoured. Complainant issued notice, on 14.12.2005 and the accused received notice on 17.12.2005. The accused did not make the payment and hence the complainant filed a case before the Court seeking punishment of the accused as prescribed under Section 138 of N.I. Act. Complainant issued notice, on 14.12.2005 and the accused received notice on 17.12.2005. The accused did not make the payment and hence the complainant filed a case before the Court seeking punishment of the accused as prescribed under Section 138 of N.I. Act. 3. In course of trial, after the appearance of the accused, learned Magistrate examined him under Section 251 of Cr. P.C. narrating the fact to which the accused pleaded not guilty and claimed to be tried. Complainant examined himself as PW. 1 and also examined another witness namely, PW. 2, Samarendra Das, Senior Manager of UCO Bank of Agartala Branch. After closure of the prosecution evidence, accused was examined under Section 313 of Cr. P.C. and thereafter, on his turn, the accused though claimed to adduce defence evidence but ultimately, even after repeated chance afforded to the accused, he failed to adduce any defence evidence. Learned Magistrate acquitted the accused from the charge, only on the ground that the complainant failed to prove that the notice, as required under Proviso (b) to Section 138 of N.I. Act, has been served on the accused. Learned Magistrate, however, has categorically held that the accused taken Rupees one lakh from the complainant and issued the cheque in due course assuring repayment of the amount to the complainant. 4. Learned counsel, Mr. Roy, has submitted that the accused is the full-blood brother of the complainant and the clear name and address of the accused has been given in the complaint petition. The accused has appeared before the Court and he was allowed to go on bail. Notice was sent to the accused through a courier service in the address, as mentioned in the copy of the notice itself (Exbt. 5) and the accused received the same. Learned Magistrate has failed to appreciate the fact and arrived at a wrong finding. Per contra, learned counsel, Mr. Bhattacharjee, has submitted that the complainant did not examine any witness to prove the alleged service of notice on the accused and so, the learned Magistrate rightly held that service of notice on the accused has not been proved and the accused, therefore, is entitled to get the benefit of doubt. Learned Addl. P.P., Mr. Debnath, has submitted that the accused committed the offence when the cheque was dishonoured. Learned Addl. P.P., Mr. Debnath, has submitted that the accused committed the offence when the cheque was dishonoured. The notice is intended only to give a chance to the accused to make payment of the amount within a time frame so that the accused can escape from the punishment stipulated under the NI Act. The accused, even after institution of the case did not make payment of the amount and therefore, intention of the accused is clear that he has taken a false plea that the notice was not received by him. In the circumstances, the accused is liable to be punished as prescribed under Section 138 of N.I. Act. 5. I have meticulously gone through the complaint and the evidence on record. Except denial there is nothing in the cross-examination of PW. 1 regarding the alleged advance of Rupees one lakh to the accused by the complainant and issuance of the cheque by the accused assuring repayment of the amount Section 138 has been incorporated to protect the holder of a negotiable instruments in due course. If a cheque is issued and the payee presented the cheque for encashment and it is dishonoured for not having the adequate amount in the account of the drawer of the cheque and he is informed by a notice by the payee and if it is found that still the drawer of the cheque fails to make the payment, he is liable to be booked under Section 138 of the N.I. Act. 6. The complaint and the evidence on record clearly indicate the name and business address of the accused. This is a case between two full blood-brothers and it may be presumed that one is well acquainted regarding the name and address of the other. The accused even in cross-examination of PW.1 did not deny that he is the proprietor of M/s. S.S. Electronics. The cheque issued by the accused which is alleged to have dishonoured (Exbt. P/2) shows that he issued the same in favour of the complainant as a proprietor of M/s. S.S. Electronics which the learned Magistrate categorically held in the judgment. Learned Magistrate also arrived at a conclusion that the accused issued the cheque in favour of the complainant and the evidence of PW. 2 clearly established that the cheque has been dishonoured. Exbt. Learned Magistrate also arrived at a conclusion that the accused issued the cheque in favour of the complainant and the evidence of PW. 2 clearly established that the cheque has been dishonoured. Exbt. P/3 is the letter issued by the banker of the complainant informing that the cheque has been dishonoured. Learned Magistrate acquitted the accused only on the ground that the complainant failed to prove that the notice was served on the accused regarding dishonour of the cheque. 7. According to the complainant, notice was sent, on 14.12.2005, through a courier service and the notice received by the accused. Exbt. 4 is the document proved by the complainant in respect of notice and Exbt. 5 is the copy of the notice. Exbt. 4 (consignment note) indicates, the names of the consigner and consignee and a separate block with the heading 'received by consignee in good condition'. The name of the consigner Keshab Banik has been mentioned clearly with his signature. The name of the consignee has been mentioned as M/s. S.S. Electronics, Battala, Agartala and in the Receipt Column an initial with date 17.12.2005 has been written which indicates that it was received by the proprietor of M/s. S.S. Electronics. The name of the accused has not been mentioned by the courier, but the name of the consignee, S.S. Electronics, which is not denied by the accused, has been clearly mentioned. P W.1, in his cross-examination, clearly stated that he has submitted the acknowledgement of proper service of the notice upon the accused and there is signature of the accused in the said acknowledgement. The complainant being full-blood brother is likely to know the signature of his brother and he has asserted that his brother received it by putting his initial. The accused adduced no evidence to discard the cogent evidence by the complainant. The accused even did not specifically deny the initial and date in Exbt. 4, in the block meant for the consignee with the heading "Received by consignee in good condition" as not of him. 8. Section 94 of the N.I. Act prescribes the very mode of giving notice which reads thus: 94. The accused even did not specifically deny the initial and date in Exbt. 4, in the block meant for the consignee with the heading "Received by consignee in good condition" as not of him. 8. Section 94 of the N.I. Act prescribes the very mode of giving notice which reads thus: 94. Mode in which notice may be given-Notice of dishonour may be given to a duly authorized agent of the person to whom it is required to be given, or, where he has died, to his legal representative, or, where he has been declared an insolvent, to his assignee; may be oral or written; may, if written, be sent by post; and may be in any form; but it must inform the party to whom it is given, either in express terms or by reasonable intendment that the instrument has been dishonoured, and in what way, and that he will be held liable thereon; and it must be given within a reasonable time after dishonour, at the place of business or (in case such party has no place of business) at the residence of the party for whom it is intended. If the notice is duly directed and sent by post and miscarries, such miscarriage does not render the notice invalid. The above provision makes it clear that the notice, if duly directed, shall serve the purpose of law. We may gainfully refer here the observation of the Apex Court in the case of K. Bhaskaran vs. Vaidhyan Balan & another reported in AIR 1999 SC 3762 : (1999) 7 SCC 510 which reads thus: 18. On the part of the payee he has to make a demand by "giving a notice" in writing. If that was the only requirement to complete the offence on the failure of the drawer to pay the cheque amount within 15 days from the date of such 'giving' the travails of the prosecution would have been very much lessened. But the legislature says that failure on the part of the drawer to pay the amount should be within 15 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. But the legislature says that failure on the part of the drawer to pay the amount should be within 15 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 in the correct address. 19. In Black's Law Dictionary, "giving of notice" is distinguished from "receiving of the notice." (vide P. 621) "A person notifies or gives notice to another by taking such steps as may be reasonably required to inform the other in the ordinary course, whether or not such other actually comes to know of it." A person "receives" a notice when it is duly delivered to him or at the place of his business. 20. If a strict interpretation is given that the drawer should have actually received the notice for the period of 15 days to start running no matter that the payee sent the notice in the correct address, a trickster cheque drawer would get the premium to avoid receiving the notice by different strategies and he could escape from the legal consequences of Section 138 of the Act. It must be borne in mind that Court should not adopt an interpretation which helps a dishonest evader and clips an honest payee as that would defeat the very legislative measure. 21. In Maxwell's "Interpretation of Statues" the learned author has emphasized that "provisions relating to giving of notice often receive liberal interpretation," (vide page 99 of the 12th edition) The context envisaged in Section 138 of the Act invites a liberal interpretation for the person who has the statutory obligation to give notice because he is presumed to be the loser in the transaction and it is for his interest the very provision is made by the legislature. The words in Clause (b) of the proviso to Section 138 of the Act show that payee has the statutory obligation to "make a demand" by giving notice. The thrust in the clause is on the need to "make a demand". It is only the mode for making such demand which the legislature has prescribed. A payee can send the notice for doing his part for giving the notice. The thrust in the clause is on the need to "make a demand". It is only the mode for making such demand which the legislature has prescribed. A payee can send the notice for doing his part for giving the notice. Once it is despatched his part is over and the next depends on what the sender does. 22. It is well settled that a notice refused to be accepted by the addressee can be presumed to have been served on him, [vide Harcharan Singh vs. Smt. Shivrani and other, (1981) 2 SCC 535 and Jagdish Singh vs. Natthu Singh, (1992) 1 SCC 647 : AIR (1992) SCW 1747: AIR (1992) SC 1604). 23. Here the notice is returned as unclaimed and not as refused. Will there be any significant different between the two so far as the presumption of service is concerned? In this connection a reference to Section 27 of the General Clauses Act will be useful. The Section reads thus:- 27. Meaning of service by post. - Where any Central Act or Regulation made after the commencement of this Act authorizes or requires any document to be served by post, whether the expression "serve" or either of the expressions "give" or "send" or any other expression is used, then, unless a different intention appears, the service shall be deemed to be effected by properly addressing, pre-paying and posting by registered post, a letter containing the document, and unless the contrary is proved, to have been effected at the time at which the letter would be delivered in the ordinary course of post. 24. No doubt Section 138 of the Act does not require that the notice should be given only by 'post'. Nonetheless the principle incorporated in Section 27 (quoted above) can profitably be imported in a case where the sender has despatched the notice by post with the correct address written on it. Then it can be deemed to have been served on the sendee unless he proves that it was not really served and that he was not responsible for such non service. Any other interpretation can lead to a very tenuous position as the drawer of the cheque who is liable to pay the amount would resort to the strategy of subterfuge by successfully avoiding the notice. Any other interpretation can lead to a very tenuous position as the drawer of the cheque who is liable to pay the amount would resort to the strategy of subterfuge by successfully avoiding the notice. In the case of V. Raja Kumari vs. P. Subbarama Naidu & another, reported in AIR 2005 SC 109 the Apex Court observed thus:- The context envisaged in S. 138 of 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 or the period of "15 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 S.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 a notice" in writing. If that was the only requirement to complete the offence on the failure of the drawer to pay cheque amount within 15 days from the date of such "giving", the travails of the prosecution would have been very much lessened. But the Legislature say that failure on the part of the drawer to pay amount should have been within 15 days of "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. In the case of M/s. Indo Automobiles vs. Jai Durga Enterprises & other reported in AIR 2009 SC 386 the Apex Court has reiterated the same view and held thus:- Admittedly, notice under S.138-B of the Negotiable Instruments Act was sent to the respondents through registered post and under a certificate of posting on the correct address of the respondents. In the case of M/s. Indo Automobiles vs. Jai Durga Enterprises & other reported in AIR 2009 SC 386 the Apex Court has reiterated the same view and held thus:- Admittedly, notice under S.138-B of the Negotiable Instruments Act was sent to the respondents through registered post and under a certificate of posting on the correct address of the respondents. The High Court had quashed proceeding on the ground that although notice through registered post and also under certificate of posting were sent by the appellant/ complainant to the respondents but because of the endorsement of the postal peon, the service could not be said to have been effected. In our view, the High Court was not justified in holding that service of notice could not be found to be valid. 9. It is evident that the notice was directed to the business address of the accused and according to the complainant, the accused received the notice by putting his initial Non-Examination of any witness from the concerned courier service cannot be a ground to record an acquittal of the accused from the charge framed against him while all other ingredients of the offence has been established Even after the complaint was filed the accused made no attempt to make payment of the amount alleged to have taken by him for which he issued the cheque. As prescribed under Section 139 of the N.I. Act 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. In the case at hand, since the issuance of cheque by the accused of the amount, as claimed by the complainant, advanced by him as loan, has been proved, the accused cannot shirk his liability with a technical plea that he did not receive the notice after the cheque was dishonoured. 10. In view of the discussion, made above, I have no hesitation to come to the conclusion that the finding of learned Magistrate acquitting the accused from the charge is not proper and therefore, the judgment is liable to be interfered and set aside and I did so. Accordingly, the judgment & order of acquittal, dated 14.2.2007, passed in Case No. CR. Accordingly, the judgment & order of acquittal, dated 14.2.2007, passed in Case No. CR. 34/2006 by learned Judicial Magistrate 1st Class, Court No. 1, Agartala, West Tripura is set aside and quashed. The accused-Sekhar Banik is found guilty of the charge, framed against him under Section 138 of the N.I. Act and accordingly, he is convicted. The Registry is directed to issue notice to the accused for his appearance for hearing on sentence fixing 19.11.2012.