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2022 (6) TMI 535 - Indian Laws
Dishonor of Cheque - insufficiency of funds - acquittal of the accused - existence of debt and liability or not - service of demand notice - cross-examination of witnesses - HELD THAT:- The opposite party did not raise a probable defence that there was no existing liability. However the appellant in its affidavit of evidence showed the transactions made in favour of the opposite party. The appellant provided an amount of Rs.75,00,000/- to the opposite party on the request of Sidharth Rai who is one of the partner of the appellant and also husband of the opposite party to run a business of tea purchase. Assurance was given to repay the amount in installment by 2016 and in the mean time would pay the profit from tea trading. The opposite party refunded an amount of Rs.13,00,000/- in 2013 and Rs.5,00,000/- in 2015. A total of Rs.18,00,000/- out of Rs.75,00,000/- has been paid and Rs.3,53,480/- as commission from profit has been paid.
In cross examination not a single question was put to the opposite party to rebut the liability. In examination under Section 313 Cr.P.C the opposite party stated that “I have not issued any cheque. I do not know how they have got the cheque. May be with fraudulence and I don’t have any liabilities to them.” The opposite party did not challenge the issuance of such fraudulent cheque. No defence has been taken nor any documents placed challenging the impugned cheque.
The proviso to Section 138 of the Act affords clear indication that ‘giving notice’ in the context is not the same as receipt of notice. Giving is the process of which receipt is the accomplishment. The payee has to perform the former process by sending the notice to the drawer at his correct address - this Court has no hesitation to hold that in connection with complaint case, demand notice was duly served upon the accused.
The order of acquittal passed in favour of the accused/respondent is liable to be set aside - appeal allowed.