Order : (Narendra Kumar Vyas, J.) 1. The appellant/complainant has preferred this acquittal appeal assailing the order dated 04.09.2021 passed by the learned Additional Sessions Judge (F.T.C.) Baikunthpur District- Koriya (C.G.) in Criminal Appeal No. 16/2020 by which the appeal preferred by the accused/respondent has been allowed and the learned Additional Sessions Judge has set aside the order dated 11.02.2020 passed by the learned Judicial Magistrate First Class, Baikunthpur, District- Koriya (C.G.) in Complaint Case No. 297/2019 by which the accused has been convicted for commission of offence under Section 138 of the Negotiable Instruments Act sentencing him to undergo R.I. for six years with fine of Rs. 1,70,000/- and in default stipulation additional R.I. for one month. 2. Case of the prosecution in brief is that the complainant has filed an application under Section 138 of the Negotiable Instruments Act before learned Judicial Magistrate First Class, Baikunthpur, District- Koriya alleging that the accused is working in colliery and the complainant is running grossery shop wherein transaction was going on between them and accordingly, the accused sought Rs. 1,75,000/- from the complainant for his domestic necessity and assured that the amount will be returned within six months. After six months, i.e. in the month July, 2018, when the complainant asked the accused to return the amount then the accused stated that whenever he will received the amount of bonus in the month of October, 2018, he will return the entire amount. After repeated persuasion made by the complainant, the accused gave a cheque bearing cheque No. 001741 dated 11.12.2018 for Rs. 1,58,000/- payable at Surguja Regional Gramin Bank, Branch- Pandavpara. The said cheque was deposited by the complainant in the bank on 14.12.2018 but the same was dishonoured and returned back to the complainant due to “insufficient fund”. Thereafter, the complainant sent a legal notice to the accused through his counsel in his address which was received by him but neither notice was replied by the accused nor the amount was returned back which has necessitated the complainant to file complaint. 3. Learned trial Court taking cognizance of the matter, sent notice to the accused and the accused examined himself under Section 313 of the Cr.P.C. wherein he denied the allegations leveled against him and also has taken a plea of false implication in the crime in question. In support of his contention, he has enclosed copy of agreement (Ex. 3. Learned trial Court taking cognizance of the matter, sent notice to the accused and the accused examined himself under Section 313 of the Cr.P.C. wherein he denied the allegations leveled against him and also has taken a plea of false implication in the crime in question. In support of his contention, he has enclosed copy of agreement (Ex. P/1), copy of cheque (Ex. P/2), forwarding memo issued by Central Bank (Ex. P/3), registered legal notice (Ex. P/4) & acknowledgment (Ex. P/5). 4. The complainant examined himself by way of affidavit under Section 145 of the Negotiable Instruments Act wherein he has reiterated the stand taken in the complaint. The complainant was cross-examined by the accused wherein he has stated that Rs. 1,58,000/- was given to the accused. He has also denied that Rs. 30,000/- has been received by him and also denied that he has received cheque from the accused in place of the amount given to the accused as security. Complainant also examined Jagnarayan Sahu who has supported the case of the complainant and stated that the agreement was executed in front of him. This witness was extensively cross-examined wherein he has stated admitted that whatever documentation has been done has not seen in the court and he has stated that the agreement was executed out of the court. He has also stated that the complainant and the accused met outside the court and admitted that no documentation work was done before him. 5. Learned trial Court after appreciating the evidence and material on record has convicted the accused as afore-stated. Being aggrieved with the judgment passed by the learned trial Court, the accused preferred an appeal before the learned appellate Court mainly contending that the complainant has not sent the legal notice as neither the date of issuance of notice, date of receipt has been mentioned nor the postal receipt has been received which may able to the trial Court to record a finding that the statutory compliance of Section 138(b) of the NI Act has been done by the complainant which is paramount consideration of maintainability of the complaint despite non-compliance of the statutory provision, the accused has been found guilty which is illegal and the order of conviction is liable to be set aside by the Appellate Court. 6. 6. Learned Appellate Court vide order dated 04.09.2021 allowed the appeal preferred by the accused by recording its finding that the complainant has not sent any legal notice which was received by the accused as no postal receipt has been brought on record proving sending demand notice through registered post, therefore, no presumption can be drawn in favour of the complainant for sending such notice and accordingly, quashed the impugned order of conviction. Being aggrieved with the order passed by the learned Appellate Court, the present acquittal appeal has been preferred by the complainant/appellant. 7. Learned counsel for the appellant/complainant would submit that the registered notice was sent to the accused and acknowledgment of the same has been placed on record which is sufficient to draw presumption that the notice was served upon the accused. He would further submit that the postal receipt was misplaced and on this count alone, the learned Appellate Court should not have acquitted the accused as other ingredient to attract Section 138 of the Negotiable Instruments is available on record. He would further submit that the accused cannot be acquitted from the alleged offence due to non- availability of postal receipt, therefore, the learned Appellate Court has committed irregularity and illegality in acquitting the accused vide impugned order dated 04.09.2021 and would pray for setting aside the impugned order. 8. To substantiate his submission, he would refer to the judgment rendered by High Court of Allahabad in case of Rajiv Malhotra Vs. State of U.P. [ 2024 SCC OnLine All 4829 ] & Anil Kumar Goel Vs. State of U.P. & another [ decided on 07.06.2021 ] 9. Per contra, learned counsel for the respondent opposing the submission made by learned counsel for the appellant/complainant would submit that the learned Appellate Court has not committed any illegality in allowing the appeal preferred by the accused and unless and until the postal receipt is not placed on record, it cannot be presumed that the notice was duly served upon the accused even no effort was made for obtaining the postal receipt from the postal department with regard to issuance of notice. Thus, the presumption cannot be drawn as Section 138 of the Negotiable Instruments Act is not fulfilled, therefore, presumption cannot be drawn in favour of the complainant. Thus, the presumption cannot be drawn as Section 138 of the Negotiable Instruments Act is not fulfilled, therefore, presumption cannot be drawn in favour of the complainant. He would further submit that the learned Appellate court has rightly acquitted the accused vide impugned order dated 04.09.2021 for commission of offence under Section 138 of the Negotiable Instruments Act and would pray for dismissal of the present acquittal appeal. 10. I have heard learned counsel for the parties and perused the documents placed on record with utmost satisfaction. 11. From records of the trial Court as well as the Appellate Court, the points emerged for determination of this Court are Point No. 1 : Whether non-submission of postal receipt vitiates the trial? Point No. 2 : Whether the finding recorded by the learned Appellate Court is contrary to the law which is liable to be interfered by this Court? 12. Since both the points are inter-connected, they are being decided analogously. To appreciate the points determined by this Court, it is expedient for this Court to extract Section 94 & 138 of the Negotiable Instruments Act which read as under:- “ Section 94. Mode in which notice may be given .— Notice of dishonour may be given to a duly authorized agent of the person to whom it is required to be given, or, where he has died, to his legal representative, or, where he has been declared an insolvent, to his assignee; may be oral or written; may, if written, be sent by post; and may be in any form; but it must inform the party to whom it is given, either in express terms or by reasonable intendment that the instrument has been dishonoured, and in what way, and that he will be held liable thereon; and it must be given within a reasonable time after dishonour, at the place of business or (in case such party has no place of business) at the residence of the party for whom it is intended. If the notice is duly directed and sent by post and miscarries, such miscarriage does not render the notice invalid. Section 138. If the notice is duly directed and sent by post and miscarries, such miscarriage does not render the notice invalid. Section 138. Dishonour of cheque for insufficiency, etc., of funds in the account .— Where any cheque drawn by a person on an account maintained by him with a banker for payment of any amount of money to another person from out of that account for the discharge, in whole or in part, of any debt or other liability, 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, such person shall be deemed to have committed an offence and shall, without prejudice to any other provisions of this Act, be punished with imprisonment for a term which may be extended to two years, or with fine which may extend to twice the amount of the cheque, or with both: Provided that nothing contained in this section shall apply unless— (a) 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; (b) 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 (c) 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. Explanation.—For the purposes of this section, “debt or other liability” means a legally enforceable debt or other liability.]” 13. Explanation.—For the purposes of this section, “debt or other liability” means a legally enforceable debt or other liability.]” 13. From perusal of Section 94, it is quite vivid that notice of dishonour may be given to a duly authorized agent of the person to whom it is required to be given, or, where he has died, to his legal representative the notice may be oral or written may, if written, be sent by post by the Court as such it is incumbent upon the complainant to serve the notice upon the accused and also to submit postal receipt to demonstrate the fact that the notice was duly served upon the accused in view of the specific denial by the accused regarding receipt of the notice. 14. Section 138 of the Negotiable Instruments Act provides that 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. It also provides that the notice has to be given in writing and should be sent by registered mode and postal receipt should be placed on record then only presumption can be drawn in favour of the complainant. 15. Learned Appellate Court rightly taking into consideration the judgment rendered by High Court of Madhya Pradesh in case of N.K. Sabarwal Vs. Rauf Khan [ 2006 (4) M.P.L.J. 545 ] recorded its finding that the it was duty of the complainant to prove dispatch by producing the receipt of registration or by calling postal authorities in evidence. The High Court of Madhya Pradesh has held in paragraph 5 & 6 as under:- “5. Having heard learned counsel for the applicant, I have gone through the record and I have not found any postal receipt for sending the demand notice to the respondent. So in the absence of such receipt no presumption can be drawn in favour of the applicant for sending the said notice through registered post either under section 3(c) of Post Office Act, 1898 or under section 114(c) of the Evidence Act or under section 27 of the General Clauses Act, 1897. So in the absence of such receipt no presumption can be drawn in favour of the applicant for sending the said notice through registered post either under section 3(c) of Post Office Act, 1898 or under section 114(c) of the Evidence Act or under section 27 of the General Clauses Act, 1897. It was the duty of the applicant to prove by reliable evidence that notice was sent through registered post and this would have been proved only by submitting postal receipt or by calling the record of Post office but no evidence was led by the applicant in this regard. 6. Coming to the acknowledgment due receipt (Ex. P.5), it is apparent that no registered letter number or postal receipt number have been mentioned in it. It does not having any seal of the post office either at the time of sending to the addressee or at the time of returning to sender (applicant). It appears to be a post card in which at the address side the name of Narendra Chouhan, learned counsel for the applicant is mentioned and other side the address of the respondent is mentioned but no connecting information is mentioned on which it could be connected with registered notice. Hence, mere on the basis of deposition of the applicant/complainant it cannot be said that Ex.P.5 is a acknowledgment due receipt of the registered notice. Even the concerning advocate Shri Narendra Chouhan was not examined to prove the fact that it was received by him. Therefore, in the absence of said postal receipt for sending the notice along with the aforesaid circumstance and also non- examination of said Shri Narendra Chouhan Advocate, aforesaid Ex. P. 5 could not be treated as acknowledgment due receipt of registered notice. In view of this mere on the basis of copy of notice (Ex.P. 4) it could not be assumed that the provisions of section 138(b) of the Act was complied with by the applicant.” 16. Similarly, High Court of Madhya Pradesh in case of Amit Thapar Vs. Rajendra Prasad Gupta [ I.L.R. (2016) M.P. 2126 ] considering necessity of postal receipt has held that the postal receipt should be placed on record before the trial Court. Similarly, High Court of Madhya Pradesh in case of Amit Thapar Vs. Rajendra Prasad Gupta [ I.L.R. (2016) M.P. 2126 ] considering necessity of postal receipt has held that the postal receipt should be placed on record before the trial Court. The High Court of Madhya Pradesh has held that unless the postal receipt is placed on record, no adverse inference can be drawn in favour of the complainant, therefore, the trial Court has only considered lacuna wherein in the present case, the postal receipt has not been placed on record by the complainant, therefore, the learned Appellate Court has rightly recorded its finding that no presumption can be drawn in favour of the complainant and acquitted the accused vide impugned order dated 04.09.2021. 17. Hon’ble the Supreme Court in case of C.C. Alavi Haji Vs. Palapetty Muhammed & another [ (2007) 6 SCC 555 ] has held that the presumption can be drawn if the notice is sent through registered mode and the postal receipt is placed on record. Hon’ble the Supreme Court taking into consideration the object of Section 138 (b) & (c) of the Negotiable Instruments Act has held that it is required that the notice is to be given to the drawer of the cheque to fulfill the requirement of Section 138 of the NI Act. Hon’ble the Supreme Court in paragraph 4, 6, 7 & 15 has held as under:- “4. Chapter XVII of the Act originally containing Sections 138 to 142 was inserted in the Act by the Banking, Public Financial Institutions and Negotiable Instruments Laws (Amendment) Act, 1988 with the object of promoting and inculcating faith in the efficacy of banking system and its operations and giving credibility to negotiable instruments in business transaction. The introduction of the said Chapter was intended to create an atmosphere of faith and reliance on banking system by discouraging people from not honouring their commitments by way of payment through cheques. Section 138 of the Act was enacted to punish those unscrupulous persons who purported to discharge their liability by issuing cheques without really intending to do so. To make the provisions contained in the said Chapter more effective, some more Sections were inserted in the Chapter and some amendments in the existing provisions were made. Section 138 of the Act was enacted to punish those unscrupulous persons who purported to discharge their liability by issuing cheques without really intending to do so. To make the provisions contained in the said Chapter more effective, some more Sections were inserted in the Chapter and some amendments in the existing provisions were made. Though, in this reference, we are not directly concerned with these amendments but they do indicate the anxiety of the Legislature to make the provisions more result oriented. Therefore, while construing the provision, the object of the legislation has to be borne in mind. 6. As noted hereinbefore, Section 138 of the Act was enacted to punish unscrupulous drawers of cheques who, though purport to discharge their liability by issuing cheque, have no intention of really doing so. Apart from civil liability, criminal liability is sought to be imposed by the said provision on such unscrupulous drawers of cheques. However, with a view to avert unnecessary prosecution of an honest drawer of the cheque and with a view to give an opportunity to him to make amends, the prosecution under Section 138 of the Act has been made subject to certain conditions. These conditions are stipulated in the proviso to Section 138 of the Act, extracted above. Under Clause (b) of the proviso, the payee or the holder of the cheque in due course is required to give a written notice to the drawer of the cheque within a period of thirty days from the date of receipt of information from the bank regarding the return of the cheque as unpaid. Under Clause (c), the drawer is given fifteen days time from the date of receipt of the notice to make the payment and only if he fails to make the payment, a complaint may be filed against him. As noted above, the object of the proviso is to avoid unnecessary hardship to an honest drawer. Therefore, the observance of stipulations in quoted Clause (b) and its aftermath in Clause (c) being a pre-condition for invoking Section 138 of the Act, giving a notice to the drawer before filing complaint under Section 138 of the Act is a mandatory requirement. 7. The issue with regard to interpretation of the expression giving of notice used in Clause (b) of the proviso is no more res integra. In K. Bhaskaran Vs. Sankaran Vaidhyan Balan & Anr. 7. The issue with regard to interpretation of the expression giving of notice used in Clause (b) of the proviso is no more res integra. In K. Bhaskaran Vs. Sankaran Vaidhyan Balan & Anr. , the said expression came up for interpretation. Considering the question with particular reference to scheme of Section 138 of the Act, it was held that failure on the part of the drawer to pay the amount should be within fifteen days of the receipt of the said notice. Giving notice in the context is not the same as receipt of notice. Giving is a process of which receipt is the accomplishment. It is for the payee to perform the former process by sending the notice to the drawer at the correct address and for the drawer to comply with Clause (c) of the proviso. Emphasizing that the provisions contained in Section 138 of the Act required to be construed liberally, it was observed thus: 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 an 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. 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 dispatched his part is over and the next depends on what the sendee does. 15. Insofar as the question of disclosure of necessary particulars with regard to the issue of notice in terms of proviso (b) of Section 138 of the Act, in order to enable the Court to draw presumption or inference either under Section 27 of the G.C. Act or Section 114 of the Evidence Act, is concerned, there is no material difference between the two provisions. In our opinion, therefore, when the notice is sent by registered post by correctly addressing the drawer of the cheque, the mandatory requirement of issue of notice in terms of Clause (b) of proviso to Section 138 of the Act stands complied with. It is needless to emphasise that the complaint must contain basic facts regarding the mode and manner of the issuance of notice to the drawer of the cheque. It is well settled that at the time of taking cognizance of the complaint under Section 138 of the Act, the Court is required to be prima facie satisfied that a case under the said Section is made out and the aforenoted mandatory statutory procedural requirements have been complied with. It is then for the drawer to rebut the presumption about the service of notice and show that he had no knowledge that the notice was brought to his address or that the address mentioned on the cover was incorrect or that the letter was never tendered or that the report of the postman was incorrect. In our opinion, this interpretation of the provision would effectuate the object and purpose for which proviso to Section 138 was enacted, namely, to avoid unnecessary hardship to an honest drawer of a cheque and to provide him an opportunity to make amends.” 18. Again Hon’ble the Supreme Court in case of H.N. Jagdish Vs. In our opinion, this interpretation of the provision would effectuate the object and purpose for which proviso to Section 138 was enacted, namely, to avoid unnecessary hardship to an honest drawer of a cheque and to provide him an opportunity to make amends.” 18. Again Hon’ble the Supreme Court in case of H.N. Jagdish Vs. R. Rajeshwari [ 2019 (16 ) SCC 730 ] has considered the importance of issuance of notice under Section 138 of the NI Act and has held that service of notice is pre-requisite for filing complaint. Hon’ble the Supreme in paragraph 6 has held as under:- “6. We are unable to agree with this approach of the High Court, in the facts of this case, which is inappropriate in law. The service of the statutory notice calling upon the drawer of the cheque (after it has been disowned) to pay the amount of cheque is a necessary pre-condition for filing of the complaint under Section 138 of the Act. Therefore, it was incumbent upon the respondent to produce the said statutory notice on record to prove the same as well. In this case, this document was not even filed by the respondent along with the complaint, and the question of proving the same was, therefore, a far cry. In a case like this, we fail to understand as to how the aforesaid omission on the part of the respondent in not prosecuting the complaint properly could be ignored and another chance could have been given to the respondent to prove the case by producing further evidence. It clearly amount to giving an opportunity to the respondent to fill up the lacuna.” 19. From the aforesaid discussion and law on the subject, it is quite vivid that the appellant/complainant is unable to prove that the presumption should be drawn in favour of the complainant as the complainant neither submitted any document regarding sending the notice by registered post i.e. postal receipt nor the certificate from postal department regarding issuance of notice by the complainant to demonstrate that the registered notice was sent by the complainant. Therefore, this Court is of the considered opinion that the Appellate Court has rightly allowed the appeal preferred by the accused acquitting him vide impugned order dated 04.09.2021 which is not liable to be interfered by this Court. 20. Therefore, this Court is of the considered opinion that the Appellate Court has rightly allowed the appeal preferred by the accused acquitting him vide impugned order dated 04.09.2021 which is not liable to be interfered by this Court. 20. The judgment referred by learned counsel for the appellant in case of Anil Kumar Goyal (supra) , the facts are distinguishable as in that case, first notice was not returned back, therefore, the complainant has sent another notice which was duly served and the same was placed on record whereas in the present case, the postal receipt was not placed on record to demonstrate that the notice was sent by the complainant through registered post. 21. In view of the above, the points determined by this Court are answered against the appellant/complainant. 22. Accordingly, the instant appeal is liable to be is hereby dismissed.