JUDGMENT : The complainant is aggrieved of the judgment dated 07.08.2015 passed in Criminal Appeal No.293 of 20 13. 2. The complainant is mother-in-law of the accused on whose complaint Complaint Case No. C/l 1834 of 2010 was instituted under section 138 of Negotiable Instruments Act. By judgment dated 03.10.2013, the learned Judicial Magistrate, 1st Class, Jamshedpur convicted O.P No.2 and sentenced him to undergo R.I for six months under section 138 of Negotiable Instruments Act. The accused was further directed to pay fine of Rs.25 lakhs to the complainant and in default of payment of the fine amount to undergo S.I for three months. 3. The complainant has alleged that she gave a cheque of Rs.20 lakhs in the name of her daughter Laxmi Singh. The amount was duly credited in her account with Axis Bank, Nagpur. The background of the aforesaid payment to the daughter of the complainant was that she had distributed the sale proceed of the landed properties at Dharupur amongst her daughters. The other daughters accepted their share given to them by the complainant but Laxmi Singh who is wife of Sanjay Kumar Singh refused saying that it was a paltry sum compared to the sale consideration. The complainant has alleged that on 02.10.2009 the accused came to her house at Jamshedpur and obtained the cheque in question of Rs.20 lakhs forcibly from her. It appears that a partition suit was filed by her husband against his co-sharers and the properties at Dharupur (Bikramganj) was claimed to be part of his ancestral properties. The complainant and her five daughters were arrayed as defendants in a subsequent suit filed by the agnates of the husband of the complainant and though they wanted to file written statement at the instigation of the husband (the accused) Laxmi Singh declined to join them. In the aforesaid circumstances, the accused returned the aforesaid amount and gave a cheque of Rs.20 lakhs dated 05.01.2010 drawn on Axis Bank, Nagpur in favour of the complainant and the said cheque was returned with endorsement 'stop payment'. 4. After the enquiry, the learned Judicial Magistrate, 1st Class, Jamshedpur took cognizance of the offence under section 138 of Negotiable Instruments Act and by an order dated 01.03.2011 substance of accusation was explained by the learned trial Judge to the accused. 4. After the enquiry, the learned Judicial Magistrate, 1st Class, Jamshedpur took cognizance of the offence under section 138 of Negotiable Instruments Act and by an order dated 01.03.2011 substance of accusation was explained by the learned trial Judge to the accused. During the trial, original cheque dated 05.01.2010, cheque return memo dated 12.05.2010, carbon copy of legal notice dated 17.05.2010, envelope with refusal endorsement and xerox copy of bank statements were produced by the complainant. The complainant has examined herself and Rajesh Singh as witnesses. The accused has examined Jai Prakash Singh and T. Venkat Rao, besides leading documentary evidence. The learned trial Judge has held that the cheque dated 05.01.2010 vide Ext.1 was returned unpaid due to 'stop payment' instruction by the accused and he refused to accept the notice demanding payment of the cheque amount within 15 days. 5. In paragraph no.12 of the judgment in Complaint Case No. C/l 1834 of 2010/TR No.1453 of 2013, the learned trial Judge has observed as under: 12. From perusal of Ext.l i.e. the cheque return memo, it transpires that the cheque hearing no. 86925 dt. 05.01.2010 was dishonored due to payment stop by the accused which is also supported by Ext.A and From perusal of Ext.3 and Ext.4 it transpires that the complainant had made a demand for the payment of the cheque amount by giving a notice in 'writing to the accused within 15 days of receipt of information from the bank regarding the return of the cheque unpaid hut this demand notice had been returned endorsing by the postal peon as refused. In the above facts and circumstances it may be presumed that the demand notice has been served upon the accused when it was duly delivered at the place of the business of the accused. Considering above discussion I find that postal endorsement refused may be presumed as tended service of demand notice to the accused and accused failed to make the payment to the complainant within 15 days of the receipt of notice. 6. The learned Appellate Court has held that the complainant could not prove that cheque of Rs.20 lakhs was tendered to her by the accused in discharge of debt or other liability. The learned Appellate Court has observed that even ignoring the defence set-up by the accused the allegation of the complainant regarding the cheque in question was not proved. 7. The learned Appellate Court has held that the complainant could not prove that cheque of Rs.20 lakhs was tendered to her by the accused in discharge of debt or other liability. The learned Appellate Court has observed that even ignoring the defence set-up by the accused the allegation of the complainant regarding the cheque in question was not proved. 7. The learned Appellate Court has observed as under: 15. The learned trial Court held that the defence could not prove that non-fulfillment of the agreement by the complainant regarding execution of deed of agreement of sale of her land and house of Jamshedpure, for which post dated cheque of 5.1.10 Rs.20 lakh was given by accused to the complainant, was the reason for issuing 'stop payment' instruction to his banker by the accused. In his judgment, the learned trial Court has not given any finding about the case of the complainant. He put the burden of proof on the accused, since the very beginning of his analysis. Section 139 NI Act prescribes thus, "it shall be presumed, unless contrary is proved, that the holder of a chqeue 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”. So, if the contrary is proved by the evidence of the complainant itself, then there is no presumption under section 139 NI Act. On looking at this angle, the finding could have been quite different. 16. This needs a repetition, but it is essential. According to complainant as Well as evidence of PW1 and the PW-2 that, at first, the complainant had paid a sum of Rs.20 lakh by cheque to accused as share amount to Laxmi Singh (his wife) out of sale money of Dharupur land, vide cheque dated 2.10.09. Subsequently, the accused returned this very amount to the complainant by drawing the impugned cheque because the complainant refused to pay more money towards share of Laxmi Singh; complainant denied the case of the accused that the share of Laxmi Singh alone would come to about Rs.85 lakh and not just Rs.20 lakh. It may be noted that throughout the complainant deliberately concealed the total sale price of the lands of Dharupur. 8. It may be noted that throughout the complainant deliberately concealed the total sale price of the lands of Dharupur. 8. The offence under section 138 of Negotiable Instruments Act fastens criminal liability on the drawer of the cheque on establishing the following facts: (i) A cheque was drawn by a person on an account maintained by him with a banker for payment of any amount of money to another person out of that account for the discharge, in whole or in part, of any debt or other liability, (ii) the cheque is returned by the bank unpaid, either because of the 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 that bank, (iii) 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; (iv) 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 thirty days of the receipt of information by him from the bank regarding the return of the cheque as unpaid; and (v) 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. 9. The offence under section 138 of Negotiable Instruments Act which is quasi criminal in nature requires 15 days clear time to drawer of the cheque from the date of information, that is to say service or refusal of legal notice to make payment of the cheque amount. On this, an issue would at once arise whether legal notice was sent to the accused at the place he was residing and whether refusal to accept legal notice was by the accused himself or on his behalf. From the materials on record, the learned Appellate Court has found that the complainant has given two addresses of the accused. On this, an issue would at once arise whether legal notice was sent to the accused at the place he was residing and whether refusal to accept legal notice was by the accused himself or on his behalf. From the materials on record, the learned Appellate Court has found that the complainant has given two addresses of the accused. The legal notice was sent to "Sri Vinod Kumar Mittal, Managing Director, C/o Sri Sanjay Singh". This address is given at the bottom of the copy of legal notice vide Ext.3. At the same time name of the addressee given on the envelope was "Sri Sheo Shankar Singh, C/o Sri Sanjay Singh". Neither Vinod Kumar Mittal nor Sheo Shankar Singh is drawer of the cheque or accused in the complaint case and for this reason alone it must be held that the legal notice was not properly addressed and sent to the accused. During the trial, the accused has taken a specific stand that no legal notice was served upon him and in his examination under section 313 of the Code of Criminal Procedure he has reiterated his defence. In my Opinion, the learned Appellate Court has therefore rightly observed that the process server, who only could say whether the accused himself had refused to accept legal notice, was not examined and while so it was not proved that legal notice was validly served upon the accused. 10. The learned Appellate court has held thus; 19. Copy of legal notice (Exhibit 3) is dated 17.5.10. Cheque returning memo (Exhibit 2) issued by Axis Bank, Nagpur to Bank of Baroda, intimating 'payment stoppage by the drawer' is dated 12.5.10. Thus, this notice vide Exhibit 3 was sent 'within 30 days of the return of unpaid cheque as required under clause (b) of section 138 NI Act. But, the most amusing thing in this regard is that that address of the accused as given in the envelope over which the endorsement of the postman as 'refused' has been proved and marked as Exhibit 4. In course of his statement recorded under section 313 CrPC, the accused flatly denied to have received any such notice. The postman who gave the endorsement of 'refused' was not examined by the prosecution. Now, this envelope gives that address of the addressee as, "To, Sri Vinod Kumar Milted, Managing Director C/o Sri Sanjay Singh". In course of his statement recorded under section 313 CrPC, the accused flatly denied to have received any such notice. The postman who gave the endorsement of 'refused' was not examined by the prosecution. Now, this envelope gives that address of the addressee as, "To, Sri Vinod Kumar Milted, Managing Director C/o Sri Sanjay Singh". The same address is given at bottom of the copy of notice (Exhibit 3). In this document (Exhibit 3) the second name of addressee is "Sri Sheo Shankar Singh, C/o Sri Sanjay Singh". This upsidedown address of the accused was enough to hold that there was no valid notice on the accused before filing this case as prescribed under section 138 NI Act. 20. Therefore, the finding of the learned trial Court that there was valid notice is held to be wrong. This point is answered accordingly. 21. It is therefore, held that Accused Sanjay Kumar Singh is found not guilty of offence punishable under section 138 NI Act and therefore, he is acquitted thereunder. The impugned judgment and order passed by the learned trial Court is hereby set-aside. 22. Accordingly, the appeal is allowed. The accused is acquitted and is set at liberty. He is also discharged from the liability of bail bonds. 11. In view of the aforesaid discussions, I find no reason to interfere with the judgment of the Appellate Court passed in Criminal Appeal No.293 of 2013 and, accordingly, Criminal Revision No.1186 of 2015 is dismissed. 12. Let a copy of this order be sent to the Court concerned through 'Fax'.