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2023 (3) TMI 1064 - HC - Indian LawsDishonour of Cheque - legally enforceable debt - whether the judgment dated 20.08.2007 in Criminal Appeal No. 66 of 2006 on the file of learned X Additional District Sessions Judge Krishna at Machilipatnam suffers with any illegality irregularity and impropriety and whether there are any grounds to interfere with the said judgment of the learned Additional Sessions Judge? - Section 138 of N.I. Act - HELD THAT - The complainant examined P.W.2 who was the attestor of Ex.P.7 promissory note and P.W.2 supported the case of the complainant. Ex.P.7 literally support the case of the complainant that P.W.2 acted as an attestor to Ex.P.7. D.W.1 in cross examination admitted that he had no disputes with the attestors or scribe mentioned in Ex.P.7. There is no dispute about the signature of the accused in Ex.P.7. Even there is no dispute that the cheque number as mentioned in Ex.P.1 was also written by the accused - As admitted by D.W.1 the accused he did not intimate to the bank and even did not intimate to the police that Ex.P.1 cheque was lost from his custody. Therefore it is very clear that though the account was closed in the year 2001 as per D.W.1 and D.W.2 but it was within the exclusive knowledge of the accused as to why he issued Ex.P.1 in the year 2004 in favour of the complainant. The defence of the accused that he used to sign the cheques beforehand and he used to return unused leaves etc. is not at all probabalized by virtue of the evidence of D.W.2 coupled with Ex.D.1 to Ex.D.4. No man of reasonable prudent would venture to sign beforehand especially when he was a habit of returning the unused cheques to the bank. The complainant was able to prove before the Court below that the accused issued Ex.P.1 cheque in favour of the complainant towards part discharge of legally enforceable debt. The date of return was on 28.10.2004. Ex.P.6 reveals that the complainant also sent a legal notice under certificate of posting. The complainant could not be found fault for the absence of the accused in the headquarters when the postal authorities tried to serve the notice. Therefore if the registered notice was sent to the correct address of the accused with proper postage and when the accused was not available at his house without any instructions to the inmates it can be taken as a proper service. Therefore there is no dispute that after waiting for the statutory period only from the date of return the complainant instituted the complaint before the Court below. Hence the contention of the accused that there was no proper compliance of statutory notice under Section 138 of N.I. Act cannot stand to any reason - the contention of the accused that there was no proper compliance of statutory notice under Section 138 of N.I. Act cannot stand to any reason. There are no grounds to interfere with the judgment of the learned X Additional District and Sessions Judge Krishna at Machilipatnam - the Criminal Revision Case is dismissed.
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