Judgment This appeal has been filed by the complainant againstthe order dated 7-5-2002 passed by the 11th Addl. Sessions Judge, Indore, in Criminal Appeal No. 363/2001, by which learned lower Appellate Court reversed the judgment passed by the Judicial Magistrate First Class, Indore, in Criminal Case No. 2803/1999 and acquitted the respondent accused for the offence punishable under section 138 of Negotiable Instruments Act, 1881. 2. The applicant-DharanidharMishra, filed a complaint against the non-applicant -Nasir Khan, under section 138 of Negotiable Instruments Act, 1881 (henceforth 'the Act'). The applicant alleged in his complaint that non-applicant had taken a loan of Rs. 2,00,000/- from him on 24-2-1997. He promises to repay after 24 months and to pay interest at the rate of 18% per annum. In lieu of loan, he mortgaged his shop by executing a documents Exhibit P/10 in his favour. He also created a second charge on his shop No. 9 as security for the loan and unregistered agreement Exhibit P/10 was executed by him. The non-applicant, however, could not make the payment of principal amount or interest. Therefore, on 11-2-1999, he handed over a cheque for Rs. 2,85,000/- to the complainant. The applicant presented the cheque to the bank. The bank dishonoured the cheque issued by the non-applicant with the remark that "non-applicant closed his bank account". The dishonored cheque along with the advice of the bank was returned to the applicant on 13-2-1999. 3. Thereafter, applicant served a legal notice dated 17-2-1999 to the non-applicant by registered A.D. with acknowledgment due under section 138 of the Act, which was received by the non-applicant on 25-2-1999. On receiving no response from the non-applicant, applicant filed a complaint under section 138 of the Act on 17-3-1999, within the period of limitation prescribed therefor. 4. On the aforesaid allegations and after registering the complaint and noticing the non-applicant,the Court proceeded to examine the applicant, Dharanidhar before framing the charge. Thereafter it framed the charge against the non-applicant-Nasirkhan. 5. The Judicial Magistrate First Class, Indore, after appreciating the Court statements of complainant and his witnesses and statement of accused recorded under section 313 of Criminal Procedure Code, came to the conclusion that section 138 would be applicable in a case where cheque is dishonored on the ground that account by drawer is closed. 6. 5. The Judicial Magistrate First Class, Indore, after appreciating the Court statements of complainant and his witnesses and statement of accused recorded under section 313 of Criminal Procedure Code, came to the conclusion that section 138 would be applicable in a case where cheque is dishonored on the ground that account by drawer is closed. 6. In respect of service of notice, the non-applicant raised an objection before the Magistrate that he had not received the notice issued by the applicant on 17-2-1995 and, therefore, there was no compliance of the provisions of section 138 of the Act. It has also alleged that acknowledgment does not appear the signature of then on-applicant. The Magistrate after appreciating the judgment of the Supreme Court as well as of the High Court, came to the conclusion that any drawer who claims that he did not receive the notice sent by the post, can, within 15 days of the receipt of summons from the complaint in respect of under section 138 of the Negotiable Instruments Act, make payment of the cheque amount and submit to the Court that he had made payment within 15 days of receipt of summons (by receiving a copy of complaint with summons) and, therefore, a person who does not pay within 15 days of receipt of summon from the Court along with the copy of the complaint under section 138 of the Act cannot obviously contend that there was no proper service of notice as required under section 138, by ignoring a statutory presumption to the contrary under section 27 of the General Clauses Act and under section 114 of the Evidence Act and held that sufficient compliance of provision of section 138 was made by the complainant. 7. In respect of the second objection that cheque was issued by the non-applicant in favour of the applicant by way of security and, therefore, drawer not liable to pay under section 138 of the Act, the Judicial Magistrate, considering the statement of Gopikrishn (PW4), came to the conclusion that non-applicant took a loan of Rs. 2,00,000/- and executed the agreement in respect of shop No. 9 to repay the loan with interest and created second charge by Exhibit P/10. Such a document does not create any right in immovable property. 2,00,000/- and executed the agreement in respect of shop No. 9 to repay the loan with interest and created second charge by Exhibit P/10. Such a document does not create any right in immovable property. Being unable to pay the loan in the stipulated period of two years, he gave a cheque for amount of loan and interest and the said cheque was issued by the applicant in favour of the non-applicant for discharging of the Act and other liability and held that the case has been proved by the complainant and convicted the non-applicant under section 138 of the Act and sentenced him to pay a fine of Rs. 5000/- and compensation of Rs. 2,85,000/- to the applicant. 8. The trial Court did not impose a jail sentence by giving a reason that respondent was not habitual offender. This part of the order was challenged by the applicant by filing a Criminal Revision No. 622/2001. Complainant filed an appeal against his conviction by the Judicial Magistrate by filing Criminal Appeal No. 363/2001. 9. The revisional Court decided both the revisions by order dated 7-5-2002 and dismissed the Criminal Revision No. 622/2001 filed by the applicant. In view of the judgment of the acquittal passed by the Judicial Magistrate, the revisional Court has dismissed the revision filed by the applicant for enhancement of sentence. The criminal appeal of the non-applicant was allowed by the lower Appellate Court by holding that the notice has not been served on the non-applicant. The lower Appellate Court also held that the cheque had been given by way of security for a loan transaction. The Appellate Court also observed that how interest of Rs. 85,000/- could accumulate on account of Rs. 2,00,000/- in two years and held that the cheque was given by way of security and not in any repayment of any debt, the Appellate Court acquitted the respondent on 7-5-2002. 10. The applicant aggrieved by the dismissal of his Criminal Revision No. 622/2001 and filed a petition under section 482 of Criminal Procedure Code, before this Court vide M.Cr.C. No. 2372/2002. This Court by order dated 14-10-2003, dismissed the application by holding that Lower Appellate Court/Revisional Court has not committed any illegal or irregularity or impropriety. 10. The applicant aggrieved by the dismissal of his Criminal Revision No. 622/2001 and filed a petition under section 482 of Criminal Procedure Code, before this Court vide M.Cr.C. No. 2372/2002. This Court by order dated 14-10-2003, dismissed the application by holding that Lower Appellate Court/Revisional Court has not committed any illegal or irregularity or impropriety. In respect of question of inadequate sentence imposed by the trial Court, this Court observed that the applicant can pray for imposition of adequate sentence if his appeal is allowed as per provisions under section 386 of the Code. With the aforesaid, the petition was dismissed on 14-10-2003. 11. Learned Senior counsel for the appellant drew my attention to the decisions of the Apex Court in the case of K. Bhaskaran vs. Sankaran Vaidhyan Balan and anr., reported as 2000(7; MPLJ (SC) 1 = (1999) 7 SCC 510 and C. C. Alavi Haji vs. Palapetty Muhammed and anr., reported as 2008(1) MPLJ (SC) 441 = 2008(1) MPLJ (Cri) (S.C.) 1 = ( 2007 6 SCC 555 , wherein the Apex Court held that it is not necessary to aver in the complaint under section 138 of the Act that service of notice was evaded by the accused or that the accused had a role to play in the return of the notice unserved. Section 114 enables the Court to presume that in the common course of natural events, the communication would have been delivered at the address of the addressee. Therefore, when the notice is served by registered-post by correctly addressing the drawer of the cheque, the mandatory requirement of issue of notice in terms of section 138 Proviso (b) of the Negotiable Instruments Act stands complied with. Any drawer who claims that he did not receive the notice sent by post, can, within 15 days of receipt of summons from the Court in respect of the complaint under section 138 of the Act, make payment of the cheque amount and submit to the Court that he had made payment within 15 days of receipt of summons (by receiving a copy of complaint with the summons) and therefore, the complaint is liable to be rejected. A person who does not pay within 15 days of receipt of the summons from the Court along with the copy of the complaint under section 138 of the Act, cannot obviously contend that there was no proper service of notice as required under section 138, by ignoring statutory presumption to the contrary under section 27 of the General Clauses Act and section 114 of the Evidence Act. 12. Here in the present case, the notice was duly served by the registered A. D. with due acknowledgment on 17-2-1999 on the correct address of the non-applicant drawer. The acknowledgment returned back to the applicant on 25-2-1999 and on the basis of the said acknowledgment the learned Judicial Magistrate had held that notice was duly served to the complainant. The law on this subject is well settled by the Apex Court in the case of K. Bhaskaran vs. Sankaran Vaidhyan Balan (supra) and C. C. Alavi Haji (supra). In the case of C. C. Alavi Haji vs. Palapetty Muhammed and anr. (supra) the Apex Court has observed the following :— "6. As noted hereinbefore, section 138 of the Act was enacted to punish unscrupulous drawers of cheques who, though purport to discharge their liability by issuing cheque, have no intention of really doing so. Apart from civil liability, criminal liability is sought to be imposed by the said provision on such unscrupulous drawers of cheques. However, with a view to avert unnecessary prosecution of an honest drawer of the cheque and with a view to give an opportunity to him to make amends, the prosecution under section 138 of the Act has been made subject to certain conditions. These conditions are stipulated in the proviso to section 138 of the Act, extracted above. Under Clause (b) oj the proviso, the payee or the holder of the cheque in due course is required to give a written notice to the drawer of the cheque within a period of thirty days from the date of receipt of information from the bank regarding the return of the cheque as unpaid. Under Clause (c), the drawer is given fifteen days time from the date of receipt of the notice to make the payment and only if he fails to make the payment, a complaint may be filed against him. Under Clause (c), the drawer is given fifteen days time from the date of receipt of the notice to make the payment and only if he fails to make the payment, a complaint may be filed against him. As noted above, the object of the proviso is to avoid unnecessary hardship to an honest drawer. Therefore, the observance of stipulations in quoted Clause (b) and its aftermath in Clause (c) being a pre-condition for invoking section 138 of the Act, giving a notice to the drawer before filing complaint under section 138 of the Act is a mandatory requirement. 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 (supra), this Court observed : "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 inadvertence 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. " 17. It is also to be borne in mind that the requirement of giving of notice is a clear departure from the rule of Criminal Law, where there is no stipulation of giving of a notice before filing a complaint. " 17. It is also to be borne in mind that the requirement of giving of notice is a clear departure from the rule of Criminal Law, where there is no stipulation of giving of a notice before filing a complaint. 'Any drawer who claims that he did not receive the notice sent by post, can, within 15 days of receipt of summons from the Court in respect of the complaint under section 138 of the Act, make payment of the cheque amount and submit to the Court that he had made payment within 15 days of receipt of summons (by receiving a copy of complaint with the summons) and, therefore, the complaint is liable to be rejected. A person who does not pay within 15 days of receipt of the summons from the Court along with the copy of the complaint under section 138 of the Act, cannot obviously contended that there was no proper service of notice as required under section 138, by ignoring statutory presumption to the contrary under section 27 of the General Clauses Act and section 114 of the Evidence Act. In our view, any other interpretation of the proviso would defeat the very object of the legislation. As observed in Bhaskaran 's case (supra), if the giving of notice in the context of Clause (b) of the proviso was the same as the receipt of notice a trickster cheque drawer would get the premium to avoid receiving the notice by adopting different strategies and escape from legal consequences of section 138 of the Act. " 13. On due consideration of the law laid down by the Apex Court and considering the fact that notice was issued by the non-applicant by registered post with the acknowledgment due, this Court is of the view that sufficient compliance of the requirement of section 138 of the Act had been made. The Lower Appellate Court committed a legal error in reversing the finding recorded by the Judicial Magistrate and the said part of the finding is liable to be set aside. 14. In respect of second question that the cheque was issued by way of security of the loan, it is submitted by the learned Senior counsel that as per statement of PW1 and PW4 that the respondent took a loan of Rs. 14. In respect of second question that the cheque was issued by way of security of the loan, it is submitted by the learned Senior counsel that as per statement of PW1 and PW4 that the respondent took a loan of Rs. 2,00,000/- in February, 1997, and executed an agreement (Exhibit P/10) to repay the loan with interest and created a second charge on his shop, such a document does not create any right in immovable property. When he had failed to pay the loan within a period of 24 months as per terms and conditions of Exhibit P/10, he gave a cheque for the amount of loan and interest. The learned lower Appellate Court committed an error in holding that an offence under section 138 of the Act was not made because the cheque was given by the way of security. He also submitted that the inference drawn by the lower Appellate Court is contrary to the facts of the case. 15. On the other hand, Shri A. Salim, learned counsel for the non-applicant drew my attention to the reasoning assigned by the lower Appellate Court in para 22 to 30 and submitted that the jurisdiction of the High Court's to interfere in such a matter is permissible in law provided the materials on records lead to only one conclusion that the non-applicant is guilty. He submitted that if on the basis of the same evidence and the lower Appellate Court takes the view in favour of the accused, this Court would not ordinarily interfere with the judgment of acquittal. He further submitted that this Court while dealing with an appeal from judgment of acquittal is required to meet the reasoning of trial Court. He lastly drew my attention to the decisions of the M. P. High Court in the case of Jitendra Sing Flora vs. RavikantTalwar, reported as 2001(1) MPLJ 229 and prayed for dismissal of the appeal. 16. From the facts as narrated hereinabove, it is clear that a sum of Rs. 2,00,000/- was given on loan to the non-applicant and in lieu of loan, he executed Exhibit P/10, wherein, it is stipulated that the loan amount will be paid by the non-applicant with interest at the rate of 1.8% per annum within a period of 24 months. From the facts as narrated hereinabove, it is clear that a sum of Rs. 2,00,000/- was given on loan to the non-applicant and in lieu of loan, he executed Exhibit P/10, wherein, it is stipulated that the loan amount will be paid by the non-applicant with interest at the rate of 1.8% per annum within a period of 24 months. The non-applicant failed to pay the loan amount within a period of 24 months and, therefore, he issued a cheque of Rs. 2,85000/-, which include principal amount and its interest to the applicant on 11-2-1999. It is not the case of the non-applicant that he did not owe any money to the applicant. From the explanation of section 138 of the Act, it is clear that:— "Dishonour of cheque for insufficiency, etc., of funds in the account. 2,85000/-, which include principal amount and its interest to the applicant on 11-2-1999. It is not the case of the non-applicant that he did not owe any money to the applicant. From the explanation of section 138 of the Act, it is clear that:— "Dishonour of cheque for insufficiency, etc., of funds in the account. — Where any cheque drawn by a person on an account maintained by him with a banker for payment of any amount of money to another person from out of that account for the discharge, in whole or in part, of any debt or other liability, is returned by the bank unpaid, either because of amount of money standing to the credit of that account is insufficient to honour the cheque or that it exceeds the amount arranged to be paid from that account by an agreement made with the bank, such person shall be deemed to have committed an offence and shall, without prejudice to any other provisions of this Act, be punished with imprisonment for a term which may extend to one year, or with fine which may extend to twice the amount of cheque, or with both : Provided that nothing contained in this section shall apply unless — (a) the cheque has been presented to the bank within a period of six months from the date on which it is drawn or within the period of its validity, whichever 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 of such cheque fails to make the payment of the said amount of money to the payee or, as the case may be to the holder in due course of the cheque within fifteen days of the receipt of the said notice. " 17. In this reference, it is to be seen when complainant entered into the witness box and gave his statement before the Court in which he has stated that in lieu of loan non-applicant executed an agreement Exhibit P/10 and second charge of the shop was given to him. " 17. In this reference, it is to be seen when complainant entered into the witness box and gave his statement before the Court in which he has stated that in lieu of loan non-applicant executed an agreement Exhibit P/10 and second charge of the shop was given to him. It is also stated that in the said agreement non-applicant agreed to repayment of the amount of loan with interest within a period of 14 months. Since he failed to make the payment and, therefore, he issued a cheque of Rs. 2,85,000/-, which include principal amount as well as interest. 18. The question in the present case is that whether the cheque which was issued by the non-applicant was in discharge of any debt or other liability. The burden on the complainant to prove that the cheque was issued to discharge the debt or other liability. The statement of complainant does show that the cheque of Rs. 2,85,000/-, which was issued to the applicant by the non-applicant was in relation to the discharge of debt. For the purpose of making an offence under section 138 of the Negotiable Instruments Act, 1881, the burden lies on the appellant to prove that cheque of Rs. 2,85,000/- was issued by the respondent in relation to the discharge or other liability. 19. On the basis of facts enumerated in the complainant, so also the statements of other witnesses, it has been duly proved by the appellant that the cheque was issued by the non-applicant for discharge of debt. 20. In the case in hand, the facts are different and, therefore, the decision of Jitendra Sing Flora vs. Ravikant Talwar (supra) on which heavy reliance was placed by the non-applicant is distinguishable. Para 2 of the said judgment reads as under :— "The non-applicant Ravikant Talwar filed a complaint against the applicant under section 138 of the Negotiable Instruments Act, 1881 (henceforth 'the Act'). The non-applicant alleged in his complaint that he is the holder of power of attorney of one Shri Shashikant Talwar. The applicant and the complainant entered into two agreements dated 8-5-1990 and 10-5-1992, whereby the applicant was required to construct building No. 183, A.P.R. Colony, Katanga, Jabalpur. Pursuant to the aforesaid agreements, it is alleged that the non-applicant advanced Rs. 2,70,000/- to the applicant. It was agreed that the work of construction of abovementioned house shall be over by 30-8-1992. The applicant and the complainant entered into two agreements dated 8-5-1990 and 10-5-1992, whereby the applicant was required to construct building No. 183, A.P.R. Colony, Katanga, Jabalpur. Pursuant to the aforesaid agreements, it is alleged that the non-applicant advanced Rs. 2,70,000/- to the applicant. It was agreed that the work of construction of abovementioned house shall be over by 30-8-1992. It is alleged in the complaint that the applicant was not able to deliver the completed building by 30-8-1992 and, therefore, the non-applicant agreed to extend the time till 30-4-1993. It is alleged in the complaint that pursuant to the aforesaid agreement, three post dated cheques dated 30-4-1993 were issued by the applicant in favour of the non-applicant bearing No. 0646945 of Rs.30.000/-, No. 0646946 of Rs. 30,000/- and No. 0646947 of Rs. 40,000/-. These Cheques were in respect of the deposit of the applicant in the Bank of India, Napier Town Branch, Jabalpur, it is alleged that after 30-4-1993, when the, construction was not completed, the non-applicant presented the Cheques to the Bank of India on 5-5-1993. The Bank dishonoured the Cheques issued by the applicant with the remark that "Refer to Drawer Insufficient Funds". The dishonoured Cheques along with the advice of the Bank were returned to the non-applicant on 7-5-1993. " 21.On due consideration of the facts and circumstances of the case, this Court is of the view that the cheque issued by the non-applicant in favour of the applicant was for discharge of debt and it was not issued by way of security. The lower Appellate Court misinterpreted the provisions of section 138 and without appreciating the law laid down by the Apex Court in the case of A". Bhaskaran vs. Sankaran Vaidhyan Balan and anr. (supra) and C. C. Alavi Haji vs. Palapetty Muhammed and anr. (supra) erred in holding that no notice as required under section 138 of the Negotiable Instruments Act was served to the non-applicant. Thus, I am of the considered view that notice was duly served by the applicant prior to the filing of the complaint as required under section 138 of the Act. the lower Appellate Court erred in law in reversing the judgment of the trial Court and, therefore, the order of the lower Appellate Court is set aside and the judgment of the Judicial Magistrate is restored. 22. the lower Appellate Court erred in law in reversing the judgment of the trial Court and, therefore, the order of the lower Appellate Court is set aside and the judgment of the Judicial Magistrate is restored. 22. In respect of question of sentence, I propose to remit the case back to the trial Court for passing appropriate sentence on the non-applicant after hearing both the sides. It is made here clear that if the non-applicant is able to make the payment of the amount covered by the cheque, he shall not be debarred from taking up the plea for mitigation of the offence. The non-applicant will be entitled to make such a plea in the event, he succeeded in paying the amount covered by the cheques. 23. With the aforesaid, the appeal is partly allowed and disposed of in the above terms. Appeal partly allowed.