JUDGMENT AND ORDER : Heard Mr. K Roy, learned counsel appearing for the petitioner as well as Mr. A. Ghosh, learned Public Prosecutor appearing for the respondent no.1, the State. Despite due notice from this court, the respondent no.2 did not take part in the hearing. 2. By means of this petition, the judgment and order dated 30.08.2014 delivered in case no. CRL.A. 02 of 2014 passed by the Additional Sessions Judge, Khowai, West Tripura has been challenged. For purpose of appreciating the challenge as projected, the brief fact, as launched in prosecuting the respondent no.2, may be noted at the outset. 3. The petitioner and the respondent no.2, who is later on referred to as the accused, were enjoying very cordial relation. For meeting an emergent need, the respondent no.2 approached the petitioner for a sum of Rs.40,000/- as loan with a condition/assurance of returning the same within a month from 12.10.2011 when the said loan was extended. On expiry of the said one month, when the petitioner approached the accused, he flatly declined to repay the said amount. Thereafter on 21.11.2011, the accused issued one cheque bearing no. 312016 on his account no. 116632 maintained in the United Bank of India, Teliamura Branch for a sum of Rs.40,000/-, for discharging his said liability. But when the cheque was deposited by the petitioner, the said cheque was dishonoured for insufficiency of the fund in the said account. On 14.01.2011, having received the memo of dishonor of cheque, the petitioner served a notice registered with AD to the accused but the said notice returned with a postal remark that the notice could not be served as the accused was absent from the given address for long time. Thereafter the petitioner filed the complaint under Section 138 of the Negotiable Instrument Act (hereinafter as NI Act in short) in the court of the Sub Divisional Judicial Magistrate, Khowai [the competent court] which complaint was subsequently transferred to the court of the Judicial Magistrate, 1st class, Khowai, West Tripura. The process was in the said complaint case bearing NI 02 of 2015. The accused appeared in the proceeding and projected his defence. 4. The process was in the said complaint case bearing NI 02 of 2015. The accused appeared in the proceeding and projected his defence. 4. The petitioner, the complainant, in support of the accusation examined as many as 5 witnesses including one Gaya Chandra Sutradhar, an independent witness (PW-4), Sri Rana Chakraborty (PW-5), the postmaster of Khowai Court post office and Smt. Arundhuti Das (PW-3), the postmaster of Teliamura post office to prove various parts of the transaction. The trial court after recording the prosecution evidences, examined the accused under Section 313 Cr.P.C. The petitioner repeated his stand what he had taken while denying the statement of accusation, as read out to him under Section 251 Cr.P.C, during his examination under Section 313 Cr.P.C. The trial court after analyzing the evidence, so recorded, came to the inference that the prosecution was successful in proving the requirements to convict the accused. According to the trial court, the said cheque dated 21.12.2012 was issued in discharge of the liability and the cheque was dishonoured for insufficiency of the fund in the account of the accused. 5. The petitioner being the complainant issued the statutory notice demanding payment of the amount as mentioned in the cheque but no payment was made by the accused before filing of the complaint and thus the complaint was in form. The trial court having regard to all the aspects of the matter, convicted the accused person under Section 138 of the NI Act and sentenced him to pay a fine of Rs.80,000/- in default to suffer simple imprisonment for one year. 6. The accused person being aggrieved by that judgment dated 22.02.2014 delivered in NI 02 of 2012 as passed by the trial court, preferred an appeal under Section 374(3) of the Cr.P.C in the court of the Additional Sessions Judge, West Tripura, Khowai being Crl. A. no. 02 of 2014. By the impugned judgment and order dated 30.08.2014, the said appeal was allowed and the accused was discharged from the criminal liability. For such reversal judgment, the appellate court primarily based on the following observation: “Now, I am coming to the other agitation as whether notice as per requirement of Negotiable Instrument Act was properly served upon the accused by the complainant after dishonour of cheque. For such reversal judgment, the appellate court primarily based on the following observation: “Now, I am coming to the other agitation as whether notice as per requirement of Negotiable Instrument Act was properly served upon the accused by the complainant after dishonour of cheque. In this regard, the complainant examined one witness, PW-3, Smt. Arundhuti Das, postmaster of Teliamura post office who stated that Exhibit 4, registered letter with AD could not be served upon the addressee even on several efforts as the addressee was absent for long time and returned to sender on 30.2.2011. As per Exhibit 4, the registered letter bears the address of the accused DFO’s Quarter Complex, Joynagar and father of addressee Matilal Biswas, driver of DFO office. So, the postal authority in this particular case in such peculiar situation could have delivered the registered letter to his father in absence of accused or could have served to the father at the office of the father of the accused. So, in the factual matrix it would be justified reasoning that the notice was not served and complainant could not made service of notice properly. Moreover, as the accused’s father worked in the office of DFO as driver, the complainant had the opportunity to reissue the notice in the office address of the father of the accused and in that event complainant had no opportunity to face legal bar on the limitation prescribed in Negotiable Instrument Act for launching prosecution as law has kept provision in such situation. As per provision of Section 142(b). Section 142. Cognizance of offence- ……(b) such complaint is made within one month of the date on which the cause of action arises under clause (c) of the proviso to Section 138”. 7. That apart, in the impugned judgment it has been observed that the complainant has failed to prove the liability. A decision of this court in Jhulan chandra Das vs. Kamal Bhowmik reported in (2014)2 TLR 274 has been relied. The said judgment and order dated 30.08.2014 reversing the conviction is under challenge in this petition. 8. Mr. Roy, learned counsel has submitted that on both the grounds as noted the appellate court has miserably failed to appreciate the correct position of law. He has contended that the Apex Court in Indo Automobiles vs. Jai Durga Enterprises & ors. The said judgment and order dated 30.08.2014 reversing the conviction is under challenge in this petition. 8. Mr. Roy, learned counsel has submitted that on both the grounds as noted the appellate court has miserably failed to appreciate the correct position of law. He has contended that the Apex Court in Indo Automobiles vs. Jai Durga Enterprises & ors. reported in AIR 2009 SC 386 has laid down the law in the following terms: “Admittedly, notice under Section 138B of the Negotiable Instruments Act was sent to the respondents through registered post and under a certificate of posting on their 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. In K. Bhaskaran v. Sankaran Vaidhyan Balan & Anr. [ 1999 (7) SCC 510 ], it has been held that the context of section 138 B of the Negotiable Instruments Act invites a liberal interpretation favouring the person who has the statutory obligation to give notice under the Act because he must be presumed to be the loser in the transaction and provision itself has been made in his interest and if a strict interpretation is asked for that would give a handle to the trickster cheque drawer. It is also well settled that once notice has been sent by registered post with acknowledgment due in a correct address, it must be presumed that the service has been made effective. We do not find from the endorsement of the postal peon that the postal peon was at all examined. In V. Raja Kumari vs. P. Subbarama Naidu & Anr. We do not find from the endorsement of the postal peon that the postal peon was at all examined. In V. Raja Kumari vs. P. Subbarama Naidu & Anr. [ 2004 (8) SCC 774 ], again this Court reiterated the same principle and held that the statutory notice under Sections 138 and 142 of the Negotiable Instruments Act, 1881 sent to the correct address of the drawer but returning with the endorsement must be presumed to be served to the drawer and the burden to show that the accused drawee had managed to get an incorrect postal endorsement letter on the complainant and affixed thereof have to be considered during trial on the background facts of the case”. 9. Mr. Roy, learned counsel having relied on this observation of the Apex Court has submitted that the accused did not discharge that burden to show the address affixed on the registered letter was not correct. As such, in view of Indo Automobiles (supra), the presumption has to be drawn that the notice was properly served. 10. Having scrutinized the records as well as the impugned judgment, this court is of the opinion that it is a clear case of avoidance of service and as such it has to be deemed that notice was properly served. In this regard, the trial court had reached a correct finding. Moreover, in the appellate judgment, the finding in regard to the discharge of liability is entirely against the statutory provision of sections 139 and 118 of the NI Act. When it is proved by the evidence, particularly the testimony of PW-4 and the negotiable instrument itself that the accused issued the cheque in the name of the petitioner, a presumption has to be drawn that that was so done in discharge of the liability unless that was rebutted by the accused by adducing evidence satisfying the standards of preponderance of probability. 11. In this regard, there is a catena of decisions. This court thus refrains from making further deliberation in this regard. Having held so, this impugned judgment is set aside. The judgment of the trial court is restored. 11. In this regard, there is a catena of decisions. This court thus refrains from making further deliberation in this regard. Having held so, this impugned judgment is set aside. The judgment of the trial court is restored. The accused person shall make the payment within a period of 2(two) months from today otherwise he shall suffer the default imprisonment, as noted in the judgment of the trial court and for that purpose he shall surrender before the trial court within the prescribed time, else the trial court shall adopt all the coercive measures subject the accused person, the respondent no. 2 herein, suffer the default imprisonment. 12. A copy of this order be sent by the Registry to the respondent no. 2 as early as possible. However, the petitioner as a measure of abundant caution may also serve a copy of this judgment and order to the respondent no. 2 as early as possible. 13. In the result, this petition stands allowed. Send down the LCRs forthwith.