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2018 (8) TMI 2048 - HC - Indian LawsDishonor of Cheque - acquittal of the accused - rebuttal of presumption - demand notice was properly served or not - HELD THAT:- This court finds that the ground on which the impugned judgment and order of acquittal has been structured is preposterous. Section 138(b) of the NI Act casts an obligation on the drawee of the cheque which is dishonoured that after receipt of the information he makes a demand for the payment of the said amount (the amount mentioned in the cheque) by giving a notice in writing to the drawer of the cheque within 30 days from the day of receipt of the information by him from the bank regarding the dishonour of the cheque for insufficiency of the fund etc. The accused-respondent has sought to prove 'the payment' by aid of two chance witnesses and both of them came to the accused-respondent for purpose of taking money. One has claimed to receive ₹ 50,000/- and another has claimed to have ₹ 2,00,000/-. It appears that they are very close to each other and they are too in a close business relation. The accused-respondent did not care to show on the date of payment from which source he got such huge amount. Whether he had collected from private sources or it was taken out from his account in any bank. Even, there is no whisper in this respect. The attempt to rebut the presumption, amenable to be drawn out what the complainant-appellant has proved is the foundation fact, is apparently very robust, but if the entire transaction is scrutinized with resilience it would surface that there is no reason that a prudent person should believe the opposite. This Court has also noticed that the accused-respondent has acted sometimes in a manner which cannot be stated to be bona fide. Even in the Court, he has stated that he did not receive the notice but the record from the postal department has squarely established that notice was duly served. Even he did not make any attempt to bring someone from the postal department to demonstrate that the communication dated 23.02.2013 (Exhibit-B) is not based on delivery of the registered article. Even there is no infirmity in the admission of the communication received from the Postal Department. As such, this Court does not have any other alternative but to observe that the accused-respondent has grossly failed to rebut the presumption under Section 139 read with Section 138 of the NI Act. The accused-respondent is liable to be convicted and is accordingly convicted under Section 138 of the NI Act - Appeal allowed.
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