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TMI Blog2021 (3) TMI 899X X X X Extracts X X X X X X X X Extracts X X X X ..... tion 138 of the Negotiable Instruments Act, 1881 and has been sentenced to pay a fine of Rs. 1,20,000/- out of which Rs. 60,000/- has been directed to be given to the complainant/opposite party No. 2 by way of compensation and in default of payment of fine, he has been directed to undergo simple imprisonment for a period of six months." Arguments of the petitioner 5. Learned counsel for the petitioner submits that it was the specific case of the complainant himself that he was to invest in the business of the accused and in lieu of that, he would be entitled to get 40% profit. He further submits that there have been no accounts regarding profit and the cheques were issued only by way of security and not against any existing debt or liability. The further point which has been argued by the learned counsel for the petitioner is that it is come in the trial court's judgment that the notice was served upon the son of the petitioner and therefore it is submitted that the notice was not served upon the petitioner. He submits that these aspects of the matter have not been properly considered by the learned courts below and accordingly both the judgments are perverse and fit to be se ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... omplainant, the accused issued a cheque of Rs. 49,500/- dated 31.01.2004 and promised to pay rest of the amounts in installments within March, 2004. The said cheque was deposited in the bank on 07.02.2004, but the same was dishonored on account of "insufficient fund". On receipt of aforesaid information, the complainant immediately met the accused at his residence and told him about the dishonor of the cheque. The accused requested the complainant not to take any legal action and issued a fresh cheque of Rs. 55,000/- with a request not to produce the same in the bank till first week of March, 2004. On 10.03.2004, another cheque was issued by the accused amounting to Rs. 5,000/-. The complainant was requested by the accused to deposit the said two cheques of Rs. 55,000/- and Rs. 5,000/- after 21.03.2004. On 28.03.2004, the accused requested the complainant not to produce the said cheques before the bank for encashment as the accused was unable to arrange sufficient funds. Thereafter , the complainant received a letter from the accused intimating the complainant that cheque issued by the accused was issued as a security and the accused asked for another Rs. 50,000/- for investment. A ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d as (Exhibit-3) (viii) Deposit slip of cheque No. 265371 in Canara Bank, Bokaro Steel City Branch marked as (Exhibit-3/1) (ix) The letter dated 27.03.2004 of accused Ranglal Ram written to the complainant Balmiki Chaudhary marked as (Exhibit-4) (x) Legal notice issued by the complainant to the accused Ranglal Ram marked as (Exhibit-5) (xi) Letter issued by the learned Advocate of the complainant to the Sub-Post Master, Sub-Post Office, Balidih, Bokaro Steel City, Bokaro marked as (Exhibit-6). 12. As per the impugned judgements ,the statement of the accused was recorded under Section 313 of the Code of Criminal Procedure, wherein he admitted that M/s. Kala Enterprises belongs to him and he also admitted that he gave in writing to the complainant to give 40% of his profit. He also admitted having written a letter to the complainant requesting for another Rs. 50,000/- over and above Rs. 1,00,000/- taken by him and told that he has nothing to say in his defence. The accused did not choose to adduce any evidence in his defence. 13. The learned trial court, after considering the evidences recorded a finding that on 16.02.2004, the accused gave a cheque of Rs. 55,000/- and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the learned counsel appearing on behalf of the petitioner has raised a specific plea by referring to para-8 of the trial court's judgment and has submitted that it has been recorded by the learned trial court that the notice was served upon the son of the petitioner on 19.08.2004 and accordingly, he has submitted that since the notice has been served upon the son of the petitioner, the same cannot be said to be service of notice upon the petitioner. 16. This Court has considered both the judgments passed by the learned courts below and it is apparent therefrom, that the legal notice regarding bouncing of cheque was sent through registered post as well as through courier service and the learned trial court at para-8 of its judgment has considered the service of legal notice through registered post i.e. through post office as well as the notice sent through courier service. In fact, the learned trial court has recorded that the post office has given in writing that notice i.e. Exhibit-5 and registered letter No. A-976 dated 17.08.2004 was delivered to the payee on 19.08.2004 for which a certificate of the post office was also exhibited and marked as Exhibit-6 and it is only in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er finds that so far as the other point raised by the petitioner, that there have been no accounts regarding profit and the cheques were issued only by way of security and not any existing debt is concerned, the same is also fit to be rejected. This Court finds that the learned court below has dealt with the plea of the petitioner regarding applicability of Sections 138 to 142 of the N.I. Act and in view of the presumption raised under Section 139 of the N.I. Act, the aforesaid plea of the petitioner has no legal basis. Admittedly, the petitioner did not adduce any defence evidence. There is no material on record to show that the reverse burden upon the petitioner regarding the cheque having been issued against a debt or any liability has not been discharged at all and therefore the presumption under section 139 of Negotiable Instruments Act, 1881 remained intact. 21. Accordingly, both the points which have been raised by the petitioner during the course of argument are devoid of any merit and are hereby rejected in absence of any perversity or illegality in the impugned judgments passed by the learned courts below. 22. This Court finds that the learned courts below have not comm ..... X X X X Extracts X X X X X X X X Extracts X X X X
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