JUDGMENT : P.S. Rana, J. Order of limited remand Present appeal is filed against the judgment dated 20.6.2006 passed by learned Additional Chief Judicial Magistrate Baijnath District Kangra in Criminal complaint No. 67-III/2004 title Mulakh Raj Mehta vs. M.C. Sharma. Brief facts of the case 2. Mulakh Raj complainant filed complaint under Section 138 of Negotiable Instrument Act 1881 pleaded therein that complainant is dealing with supply of building material for construction of houses at Baijnath Tehsil Baijnath District Kangra H.P. It is pleaded that complainant supplied building material to accused worth Rs.75000/- (Rupees seventy five thousand only) for construction of a house situated at Sungal Tehsil Baijnath District Kangra H.P. It is pleaded that accused issued cheque No. 988346 dated 25.5.2001 in favour of complainant. It is pleaded that complainant presented the above said cheque and said cheque was dishonoured on account of “Account closed”. It is pleaded that thereafter complainant issued a demand notice through Advocate and demand notice was received by accused. It is pleaded that accused did not pay the amount despite demand notice. It is pleaded that accused be punished under Nagotiable Instrument Act 1881. 3. Notice of Accusation was put to accused by learned Judicial Magistrate Baijnath under Section 138 of Negotiable Instrument Act 1881. Accused did not plead guilty and claimed trial. 4. Complainant examined two witnesses in support of his case and also tendered documentaries evidence. Accused did not lead any defence evidence. Learned Trial Court dismissed the complaint and acquitted the accused. 5. Feeling aggrieved against the judgment passed by learned Trial Court complainant Mulakh Raj filed present criminal appeal. 6. Court heard learned Advocate appearing on behalf of the appellant and learned Advocate appearing on behalf of the respondent/accused and also perused the entire record carefully. 7. Following points arise for determination in present appeal:- Point No.1 Whether appeal filed by appellant is liable to be accepted as mentioned in memorandum of grounds of appeal? Point No.2 Final Order. 8. Findings upon Point No.1 with reasons 8.1. CW1 Mulakh Raj has stated that he used to supply building material for construction and he is running shop at Baijnath District Kangra (H.P.). He has stated that he has supplied building construction material to the tune of Rs.75000/- (Rupees seventy five thousand) to accused. He has stated that accused issued cheque to him in consideration amount of Rs.25000/- (Rupees twenty five thousand). He has stated that he has supplied building construction material to the tune of Rs.75000/- (Rupees seventy five thousand) to accused. He has stated that accused issued cheque to him in consideration amount of Rs.25000/- (Rupees twenty five thousand). He has stated that cheque was presented for encashment and same returned with remarks “Account closed”. He has stated that demand notice was also given to accused but despite demand notice accused did not pay the amount. He has denied suggestion that he has filed the present complaint just to harass the accused. He has denied suggestion that complainant has himself admitted balance of Rs.3845/- (Rupees three thousand eight hundred forty five). 8.2 CW2 Ashok Kumar posted as Clerk in Bank has stated that he has brought the summoned record. He has stated that cheque was presented before bank for encashment and same was sent to Bank of Baroda New Delhi for collection. He has stated that memo Ext.CW2/C was received with report that accused has closed the account. He has stated that record relating to bank account of accused is available in Bank of Baroda New Delhi. 9. Following documentaries evidence adduced by complainant. (1) Ext.CW2/A is cheque issued to the tune of Rs.25000/- (Rupees twenty five thousand) issued in favour of Mulakh Raj on 25.5.2001 by accused. (2) Ext.CW1/A is postal receipt. (3) Ext.CW1/B is legal notice issued to accused under Section 138 of Negotiable Instrument Act 1881. (4) Ext.CW2/C is memorandum issued by Bank of Baroda New Delhi with remarks ‘Account closed’. 10. Statement of accused recorded under Section 313 of Code of Criminal Procedure by learned Trial Court. Accused has stated that he has paid Rs.75000/- (Rupees seventy five thousand) by way of cash and only balance of Rs.3845/- (Rupees three thousand eight hundred forty five) was found. 11. Submission of learned Advocate appearing on behalf of appellant that learned Trial Court did not properly appreciate the oral as well as documentaries evidence placed on record and judgment of learned Trial Court warrants interference is accepted for the reasons hereinafter mentioned. It is well settled law that to complete offence under Section 138 of Negotiable Instrument Act 1881 following facts should be established. (1) Issuance of cheque. (2) Presentation of cheque to Bank. (3) Return of cheque unpaid. (4) Issuing notice in writing to accused demanding payment of cheque amount. It is well settled law that to complete offence under Section 138 of Negotiable Instrument Act 1881 following facts should be established. (1) Issuance of cheque. (2) Presentation of cheque to Bank. (3) Return of cheque unpaid. (4) Issuing notice in writing to accused demanding payment of cheque amount. (5) Failure of accused to make payment within 15 days after demand notice. Above said facts are sine-quanon for completion of offence under Section 138 of Negotiable Instrument Act 1881. 12. In present case cheque was returned on account of “Account closed” by accused. CW2 Ashok Kumar posted in KCC Bank has stated in positive manner that cheque was returned with memo that accused has closed the account. It was held in case reported in AIR 1999 SC 1952 title NEPC Micon Ltd. and others vs. Magma Leasing Limited that if the cheque is returned with endorsement ‘Account closed’ the same is offence under Section 138 of Negotiable Instrument Act. It was held that reading Section 138 and Section 140 together it would be clear that dishonour of cheque by a bank on ground that account was closed would be covered by phrase amount of money standing to the credit of that account is insufficient to honour the cheque. It was held that expression amount of money standing to the credit of that account is insufficient to honour the cheque is genus and expression that account being closed is specie. It was held that Section 138 of Negotiable Instrument Act 1881 is a penal statute and it is duty of Court to interpret it consistent with legislative intent. It is well settled law that ruling given by Hon’ble Apex Court of India is binding on all Courts throughout India as per Article 141 of Constitution of India. 13. As per testimonies of CWs 1 and 2 it is proved on record that cheque issued by accused was dishonoured. Testimonies of CWs 1 and 2 remain unrebutted on record. Testimonies of CWs 1 and 2 are also corroborated by documentaries evidence i.e. cheque Ext.CW2/A dated 25.5.2001 placed on record and postal receipt Ext.CW1/A placed on record and legal notice Ext.CW1/B placed on record and memo issued by Bank of Baroda Ext.CW2/C relating to account closed. 14. Testimonies of CWs 1 and 2 remain unrebutted on record. Testimonies of CWs 1 and 2 are also corroborated by documentaries evidence i.e. cheque Ext.CW2/A dated 25.5.2001 placed on record and postal receipt Ext.CW1/A placed on record and legal notice Ext.CW1/B placed on record and memo issued by Bank of Baroda Ext.CW2/C relating to account closed. 14. As per Section 118 of Negotiable Instrument Act 1881 there is presumption relating to (1) Consideration, (2) Date (3) Time of acceptance, (4) Time of transfer, (5) Order of endorsement (6) That holder is holder in due course. See (2008)7 SCC 655 title Mallavarapu Kasivisweswara Rao vs. Thadikonda Ramulu Firm and others. Even as per Section 139 of Negotiable Instrument Act 1881 there is presumption in favour of holder of cheque unless contrary is proved. 15. Submission of learned Advocate appearing on behalf of accused that complainant has given the bill to the tune of Rs.78845/- (Rupees seventy eight thousand eight hundred forty five) and complainant received Rs.75000/- (Rupees seventy five thousand) and there was balance of Rs.3845/- (Rupees three thousand eight hundred forty five) and on this ground appeal be dismissed is rejected being devoid of any force for the reasons hereinafter mentioned. Plea of respondent/accused that there was balance of Rs.3845/- (Rupees three thousand eight hundred forty five) is defeated on the concept of ipse dixit (An assertion made without proof). Respondent/accused did not adduce any evidence on record in order to prove that he had paid Rs.75000/- (Rupees seventy five thousand) to complainant by way of cash. There is no oral or documentary evidence on record in order to prove the version of respondent/accused. In view of above stated facts point No.1 is answered accordingly. Point No. 2 (Final Order) 16. In view of findings upon point No.1 above appeal is accepted. Judgment of learned Trial Court is set aside and case is remitted back to learned Trial Court for limited purpose only with direction to conduct further inquiry in present case in accordance with law relating to cheque No. 988346 dated 25.5.2001 from officials of Bank of Baroda 13 District Centre Janakpuri New Delhi. Further inquiry is essential in present case in order to decide case properly and effectively and in order to impart substantial justice to parties. Learned Trial Court thereafter will pass judgment in accordance with law afresh. Further inquiry is essential in present case in order to decide case properly and effectively and in order to impart substantial justice to parties. Learned Trial Court thereafter will pass judgment in accordance with law afresh. Learned Trial Court will dispose of complaint within three months because present complaint was filed in the year 2004 and require expeditious disposal. Evidence already recorded will remain part and parcel of case. Parties are directed to appear before learned Trial Court on 20.7.2016. Learned Registrar Judicial is directed to send file of learned Trial Court along with certified copy of order forthwith. Criminal appeal is disposed of. All pending miscellaneous applications also stands disposed of.