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2013 DIGILAW 34 (RAJ)

Ghanshyam Sahu v. The State of Rajasthan

2013-01-07

SANDEEP MEHTA

body2013
JUDGMENT 1. - The instant Leave to Appeal has been filed by the complainant Ghanshyam Sahu challenging the order dated 2.2.2010 passed by the learned Special Judicial Magistrate, Neotiable Instruments Act Cases, No.2, Udaipur in Criminal Regular Case No.212/2009 acquitting the respondent No.2 from the offence under Section 138 of the N.I. Act. 2. Heard learned counsel for the parties, perused the judgment impugned as well as the record. 3. In this case, the respondent No.2 has been acquitted by the learned trial Judge on the ground that the mandatory notice of demand under Section 138 of the Neotiable Instruments Act was not sent at her correct address. The undisputed legal position in this regard is that a person can be prosecuted for the offence under Section 138 of the Neotiable Instruments Act when the necessary compliance of the mandatory notice of demand under Section 138 of the Neotiable Instruments Act has to be made. One of the basic requirement is that when the cheque is dishonored by the Bank concerned, the holder of the cheque in due course (the complainant) has to issue a notice of demand to the account holder (accused). The notice can be served by sending the same in writing to the correct address of the account holder. In this matter, the mandatory notice of demand under Section 138 of the Neotiable Instruments Act was not sent to the accused respondent No.2 at her correct address. 4. Upon a perusal of the complaint, it is apparent that two addresses of the respondent No.2 have been mentioned in the compliant. One being in typed words and the address has been shown 2. as 27-M.K. Fashion, Infront of Moti Vatika, Shakti Nagar, Udaipur. Thereafter, another address has been added in written letters and the same reads as C/o 144, House of Sohan Lal Ji Palawat, Infront of Navbharat School, Ashok Nagar, Udaipur. The written notice of demand was sent to the account holder at the address 27-M.K. Fashion, Infront of Moti Vatika, Shakti Nagar, Udaipur as is apparent from the AD of the registered notice, which has been marked as Ex.P- 5. It is not in dispute that no notice was sent to the account holder at the second address i.e. C/o 144, House of Sohan Lal Ji Palawat, Infront of Navbharat School, Ashok Nagar, Udaipur. It is not in dispute that no notice was sent to the account holder at the second address i.e. C/o 144, House of Sohan Lal Ji Palawat, Infront of Navbharat School, Ashok Nagar, Udaipur. The account holder (accused) has given a specific suggestion to the complainant that her correct address was not 27-M.K. Fashion, Infront of Moti Vatika, Shakti Nagar, Udaipur. The complainant in his cross-examination has admitted that he does not know as to what is the correct and permanent address of the respondent No.2 Smt. Manju Kawadia. He also admitted that he has told his Advocate about the address of the respondent No.2 Smt. Manju Kawadia at C/o 144, House of Sohan Lal Ji Palawat, Infront of Navbharat School, Ashok Nagar, Udaipur. He has also admitted in cross-examination that he has sent only one cheque to the respondent No.2 Smt. Manju Kawadia. He has also admitted that he was not in a position to say that the signatures on the acknowledgment receipt Ex.P-5 were those of Smt. Manju Kawadia or not. He has also admitted that the permanent address of Smt. Manju Kawadia was C/o 144, House of Sohan Lal Ji Palawat, Infront of Navbharat School, Ashok Nagar, Udaipur, which has been marked as C to D in the complaint. 5. In this view of the matter, it is apparent that the notice for demand has not been sent to the account holder (accused) at her correct address. The Hon'ble Apex Court in the case of C.C. Alavi Haji v. Palapetty Muhammed & Anr. reported in (2007)3 SCC Crime 236 : 2007 (2) NIJ 1 (SC) has held that the holder of the cheque in due course upon the cheque being dishonored has to send a notice of demand in writing to the account holder (accused) at his correct address. Thereafter, presumption under Section 27 of the Neotiable Instruments Act would come into play. In this case, as the notice has not been sent to the correct address of the respondent No.2, then, it is obvious that the mandatory requirement of giving a notice of demand under Section 138 of the Neotiable Instruments Act has not met with. 6. Resultantly, in the opinion of this Court, the learned trial court has rightly acquitted the respondent No.2 from the offence under Section 138 of the Neotiable Instruments Act. 6. Resultantly, in the opinion of this Court, the learned trial court has rightly acquitted the respondent No.2 from the offence under Section 138 of the Neotiable Instruments Act. There is no illegality in the order passed by the learned trial court acquitting the respondent No.2 from the offence under Section 138 of the Neotiable Instruments Act. The leave to appeal thus fails and the same is hereby dismissed as such.Leave to Appeal Dismissed. *******