ORDER : 1. The present acquittal appeal has been preferred by the appellant/complainant against the judgment of acquittal dated 18.09.2007 passed by the learned JMFC, Raipur (CG) in Criminal Complaint No.179/2006 (Annexure A/1), whereby the respondent has been acquitted of the charges punishable under Section 138 of the Negotiable Instrument Act, 1881. 2. Brief facts of the case are that the appellant and the respondent were known to each other and the respondent had taken loan amounting to Rs.5,25,000/- from the appellant for his business and for which the respondent had issued cheques and when the cheques were presented before the bank for encashment, the same got dishonored, upon which the appellant intimated the respondent about the same but no heed was paid by him and thereafter even legal notice was sent to the respondent on 31.10.2003, but all went in vain, which resulted into filing of a complaint by the appellant before the Trial Court. 3. Before the Trial Court, the appellant/complainant examined himself as CW-1, Rupender Jain as CW-2 and Ashok Gupta as CW-3. On the other hand, the accused examined himself as DW- 1 and Uttpal Bhattacharya as DW-2. The statement of accused was also recorded under Section 313 of CrPC, in which he pleaded not guilty. 4. The learned trial Court after appreciation of oral and documentary evidence available on record acquitted the accused respondent for the offence punishable under Section 138 of the NI Act. 5. Learned counsel for the appellant submits that that the impugned judgment of acquittal is bad in law as well as facts on record. The learned Trial Court taking hyper technical approach on presumption of Section 138(b) of Negotiable Instrument Act 1881 has acquitted the Respondent/Accused from the offence under section 138 of Negotiable Instrument Act 1881. The Respondent/Accused was rightly implicated on this case on the basis of facts, evidence and complaint of Complainant/Appellant. In Complaint the Complainant/Appellant has specifically pleaded that the Respondent/Accused willfully avoided service of Notice. Despite of these the Respondent/Accused accepted that he had issued these cheque in favour of the Complainant/Appellant. The Judgment passed by the learned Trial Court is bad in the eyes of law and deserves to be quashed by this Court, as it has not properly marshaled the evidence of the witnesses and reached in wrong conclusion that notices were not properly served. The Judgment passed by the learned Trial Court is bad in the eyes of law and deserves to be quashed by this Court, as it has not properly marshaled the evidence of the witnesses and reached in wrong conclusion that notices were not properly served. The Respondent/Accused himself admitted in Par 5 of his deposition as Court answer that I am residing at Ramsagarpara for above 2 and 1/2 years and before that I was residing at Choubey Colony. He further admitted in para 10 of his deposition that his parental house is situated at Garaiband. That applicant/Complainant had sent notice on both the addresses [Exhibit P/1 & P/3] and the Respondent/Accused had not submitted anywhere that these addresses were wrong. Infact he had information that such notices were sent on his both residential addresses but with ill intention, he denied service of Notice. The learned trial Court has reached wrong conclusion that notice has not been served to the Respondent/Accused. Therefore, the impugned judgment of acquittal may kindly be set aside. Reliance has been placed on the judgments rendered by the Hon’ble Supreme Court in the matters of K. Bhaskaran vs Sankaran Vaidhyan Balan and another, reported in (1997) 7 SCC 510 and M/s Sarav Investment & Financial Consultants Pvt. Ltd. and Anr vs Llyods Register of Shipping Indian Office Staff Provident Fund & Anr, reported in 2007 AIR SCW 6482. 6. Learned counsel for the respondent supports the impugned judgment. 7. Heard learned counsel for the parties and perused the material available on record. 8. The learned Trial Court found that the legal notice was not served upon the accused and the complainant has failed to prove service of notice as contemplated under Section 138 (B) of the NI Act and as such the complaint is not maintainable and acquitted the respondent/accused from the charges punishable under Section 138 of the NI Act. 9. Before the Trial Court, the complainant examined himself and stated that he sent legal notice through his advocate vide Ex-P/1 to the accused, but both the notices were returned with envelop vide Ex-P/2 & P/3. 10. The Hon’ble Apex Court in the matter of K. Bhaskaran (supra) held in paras 19 to 24 as under:- “19. 9. Before the Trial Court, the complainant examined himself and stated that he sent legal notice through his advocate vide Ex-P/1 to the accused, but both the notices were returned with envelop vide Ex-P/2 & P/3. 10. The Hon’ble Apex Court in the matter of K. Bhaskaran (supra) held in paras 19 to 24 as under:- “19. In Black's Law Dictionary, `giving of notice' is distinguished from `receiving of the notice.' (vide page 621) "A person notifies or gives notice to another by taking such steps as may be reasonably required to inform the other in the ordinary course, whether or not such other actually comes to know of it." A person `receives' a notice when it is duly delivered to him or at the place of his business. 20. If a strict interpretation is given that the drawer should have actually received the notice for the period of 15 days to start running no matter that the payee sent the notice on the correct address, a trickster cheque drawer would get the premium to avoid receiving the notice by different strategies and he could escape-from the legal consequences of Section 138 of the Act. It must be borne in mind that Court should not adopt in interpretation which helps a dishonest evader and clips an honest payee as that would defeat the very legislative measure. 21. In Maxwell's `Interpretation of Statues' the learned author has emphasized that "provisions relating to giving of notice often receive liberal interpretation." (vide page 99 of the 12th edn.) The context envisaged in Section 138 of the Act invites a liberal interpretation for the person who has the statutory obligation to give notice because he is presumed to be the loser in the transaction and it is for his interest the very provision is made by the legislature. The words in clause (b) of the proviso to Section 138 of the Act show that payee has the statutory obligation to `make a demand' by giving notice. The thrust in the clause is on the need to `make a-demand'. It is only the mode for making such demand which the legislature has prescribed. A payee can send the notice for doing his part for giving the notice. Once it is despatched his part is over and the next depends on what the sendee does. 22. The thrust in the clause is on the need to `make a-demand'. It is only the mode for making such demand which the legislature has prescribed. A payee can send the notice for doing his part for giving the notice. Once it is despatched his part is over and the next depends on what the sendee does. 22. It is well settled that a notice refused to be accepted by the addressee can be presumed to have been served on him, [vide Harcharan Singh v. Smt. Shivrani and Ors., [1981] 2 SCC 535, and Jagdish Singh v. Natthu Singh, [1992] 1 SCC 647.] 23. Here the notice is returned as unclaimed and not as refused. Will there be any significant different between the two so far as the presumption of service is concerned? In this connection a reference to Section 27 of the General Clauses Act will be useful. The Section reads thus : "27. Meaning of service by post. - Where any central Act or Regulation made after the commencement of this Act authorizes or requires any document to be served by post, whether the expression `serve' or either of the expressions `give' or `send' or any other expression is used, then, unless a different intention appears, the service shall be deemed to be effected by properly addressing, prepaying and posting by registered post, a letter containing the document, and unless the contrary is proved, to have been effected at the time at which the letter would be delivered in the ordinary course of post" 24. No doubt Section 138 of the Act does not require that the notice should be given only by `post'. Nonetheless the principle incorporated in Section 27 (quoted above) can profitably be imported in a case where the sender has despatched the notice by post with the correct address written on it. Then it can be deemed to have been served on the sendee unless he proves that it was not really served and that he was not responsible for such non-service. Any other interpretation can lead to a very tenuous position as the drawer of the cheque who is liable to pay the amount would resort to the strategy of subterfuge by successfully avoiding the notice.” 11. Any other interpretation can lead to a very tenuous position as the drawer of the cheque who is liable to pay the amount would resort to the strategy of subterfuge by successfully avoiding the notice.” 11. The Hon’ble Apex Court again in the matter of M/s Sarav Investment & Financial Consultants Pvt. Ltd. (supra) held in paras 20 & 21 as under:- “20. If a strict interpretation is given that the drawer should have actually received the notice for the period of 15 days to start running no matter that the payee sent the notice on the correct address, a trickster cheque drawer would get the premium to avoid receiving the notice by different strategies and he could escape from the legal consequences of Section 138 of the Act. It must be borne in mind that the court should not adopt an interpretation which helps a dishonest evader and clips an honest payee as that would defeat the very legislative measure. 21. In Maxwells Interpretation of Statutes, the learned author has emphasized that provisions relating to giving of notice often receive liberal interpretation (vide p. 99 of the 12th Ed.). The context envisaged in Section 138 of the act invites a liberal interpretation for the person who has the statutory obligation to give notice because he is presumed to be the loser in the transaction and it is for his interest the very provision is made by the legislature. The words in clause (b) of the proviso to Section 138 of the Act show that the payee has the statutory obligation to make a demand by giving notice. The thrust in the clause is one the need to make a demand. It is only the mode for making such demand which the legislature has prescribed. A payee can send the notice for doing his part for giving the notice. Once it is dispatched his part is over and the next depends on what the sendee does.” 12. In light of the above judgments, it is clear that in the present case, the respondent accused admitted in his statement as defence witness (DW-1) that he had given 4 cheques to the complainant. He stated in para 5 that the complainant did not give any notice to him. In light of the above judgments, it is clear that in the present case, the respondent accused admitted in his statement as defence witness (DW-1) that he had given 4 cheques to the complainant. He stated in para 5 that the complainant did not give any notice to him. When he was asked about his residence by the Court, then he answered that he has been residing at Ramsagarpara, Raipur for last 2 and half years and prior to that he was residing at Choubey Colony.” He admitted in para 10 that when had given cheque to the appellant, he was not having any money in his account. The complainant also examined witness Rupender Jain, Officer of ICICI Bank, Raipur and Ashok Gupta, Commandant of Bank of India, Raipur. Both the witnesses supported this fact that all the cheques (Ex-P/7 to Ex-P/11) were dishonored. 13. The learned Trial Court after appreciating the oral and documentary evidence available on record found that the service of demand notice is essential ingredient of offence punishable under Section 138 of the NI Act. The proof of the service of demand notice is also necessary, but both the legal notices were not served upon the accused and thereby acquitted the respondent. 14. Considering the above guidelines of the Hon’ble Apex Court, it is clear that the accused deliberately shifted to another address. When Court asked about his residence, he admitted that prior 2 years, he was residing at Choubey Colony and then he shifted to another colony. He also admitted that when he issued cheques in favour of complainant, at that time he had not sent amount in his account. 15. In this case, the respondent has admitted that he had given signed cheques to the appellant but he examined himself and one defence witness in this regard. The respondent stated that he only gave these cheques for the purpose of loan to the complainant, but there are contradictions in the statements of both these witnesses. Therefore statement of respondent and this witness are not trustworthy and it is admitted position that cheques were dishonored by the bank. The respondent stated that he only gave these cheques for the purpose of loan to the complainant, but there are contradictions in the statements of both these witnesses. Therefore statement of respondent and this witness are not trustworthy and it is admitted position that cheques were dishonored by the bank. The notices were sent to respondent within time on his address and the respondent did not pay the cheque amount to the appellant, therefore, presumption under Sections 138 and 139 of the NI Act is drawn in favour of the appellant and the respondent did not rebut this presumption, but the learned Trial Court wrongly appreciated the oral and documentary evidence and gave wrong finding. 16. Considering the facts and circumstances of the case and the guidelines of the Hon’ble Apex Court, this appeal is allowed and the finding recorded by the learned Trial Court is hereby set aside. The respondent accused is convicted under Section 138 of the NI Act and sentenced to pay fine of Rs.5,50,000/- to the complainant and in default of payment of fine, to undergo RI for 2 years. The fine amount so deposited by the respondent/accused shall be payable to the appellant/complainant as compensation.