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2023 (8) TMI 4 - TRIPURA HIGH COURTDishonour of Cheque - discharge of legally enforceable debt or not - false and fabricated cheque - rebuttal of presumption under Sections 118 and 139 the NI Act - service of demand notice - HELD THAT:- With regard to the “giving of notice” and “receipt of notice” this court is of the view that it is amply clear from a bare reading of the sub-clause of Section 138 of the NI Act that on the part of the payee, he has to make a demand by giving a notice in writing. If that was the only requirement to complete the offence on the failure of the drawer to pat the cheque amount within 15 days from the date of such „giving‟ the travails of the prosecution would have been very much lessened, but the legislature says that failure on the part of the drawer to pay the amount should be 15 days of the receipt of the said notice. It is therefore clear that „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 an admitted fact that the wife of the respondent had duly received the Notice, and it was nowhere pleaded by the respondent that he and his wife were living separately during the relevant point of time, hence burden was upon the respondent to substantiate that he did not receive the Notice. It is submitted that just to evade the liability of Section 138 of the Negotiable Instruments Act, 1881, the respondent has taken such umbrage of non-receipt of the Notice. Hence, a reasonable presumption has to be drawn that the husband did have the knowledge regarding the receipt of notice as they were staying together. Thus, it cannot be said that notice served on the wife is not served on the husband under Section 138 of NI Act. It has also been established that the cheque in question got the signature of the accused. It can be ascertained from this act of the respondent that he, at some point of time, intended to repay the complainant. This court is of the view that the mere acceptance of the signature on the part of the accused on the check implies that it is legally enforceable debt and hence the debt is admitted. There is no sufficient evidence in favour of the accused person to deny version of the complainant. The impugned judgment order set aside - appeal allowed.
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