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2022 (8) TMI 820 - HC - Indian LawsDishonor of Cheque - non-service of notice - whether without establishing service of notice upon the accused a prosecution under section 138 of the Negotiable Instruments Act, 1881 can be conducted? - HELD THAT:- The offence under section 138 of the Negotiable Instruments Act, 1881 requires the complainant to establish (i) issuance of cheque in discharge of any debt or other liability, in whole or in part (ii) return of cheque unpaid either for insufficient fund or any other reason (iii) notice providing clear 15 days' time for repaying the debt amount, and (iv) proof of service of notice upon the accused. On admitted facts, there is no proof of service of notice dated 1st June 2012 upon the petitioner. Both Courts have taken note of the aforesaid circumstance that no proof as regards service of legal notice dated 1st June 2012 has been produced by the complainant - the proposition as regards "giving of notice" and "receipt of notice" is in relation to presumption of service under section 27 of the General Clauses Act, 1897 which would attract only on proof by the complainant by producing postal receipt which would clearly establish that the postal cover was correctly addressed and sufficiently stamped, and by proving the same in accordance with the rules of evidence. Admittedly, postal receipt and postal cover have not been produced by the complainant to show that the legal notice dated 1st June 2012 was sent to the petitioner. This Court finds that the essential facts to prove the offence under section 138 of the Negotiable Instruments Act, 1881 have not been established during the trial and while so conviction and sentence of the petitioner are held bad - conviction and sentence awarded to the petitioner, are set aside - the petitioner is discharged of liability of the bail bonds furnished by him pursuant to the order dated 14th June 2016 passed by this Court. Revision allowed.
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