TMI Blog2008 (4) TMI 819X X X X Extracts X X X X X X X X Extracts X X X X ..... t when the notice was sent by RPAD\UCP by properly addressing, pre-paying posting stamps and cover containing necessary document, even if it is received by any of the adult members of the family other than servant is held to be sufficient. In this case the wife of the respondent received the notice and this fact is corroborated by the testimony of DW.2 and has not been rebutted by the respondent. Mere handing over the share certificate with blank transfer form and without the agreement executed between the seller and the purchaser could not have construed to be sale of shares legally. Therefore the findings of the Magistrate are erroneous and hence the order of acquittal cannot be sustained. 5. On the other hand, the learned Counsel for the respondent submitted that the dishonoured cheque in question was not in respect of a legally enforceable debt, that the cheque was presented beyond six months from the date of its drawal; that the notice was not received by a person authorised by the respondent and that the alleged loan was advanced through cheque, but the appellant has not produced the bank pass book and therefore the Magistrate has rightly acquitted the respondent. 6. In ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... by person on a account maintained by him with a Banker for payment of any amount of money to another person from out of that account for the discharge, in whole or in part, of any debt or other liability, is returned by the Bank unpaid, either because of the amount of money standing to the credit of that account is insufficient to honour the cheque or that it exceeds the amount arranged to be paid from that account by an agreement made with that Bank, such person shall be deemed to have committed an offence, provided: (a) the cheque has been presented to the Bank within a period of six months from the date on which it is drawn or within the period of its validity, whichever is earlier, (b) the payee or the holder in due course of the cheque, as the case may be, makes a demand for the payment of the said amount of money by giving a notice in writing, to the drawer of the cheque, within 15 days of the receipt of information by him from the Bank regarding the return of the cheque as unpaid; and (c) the drawer of such cheque fails to make the payment of the said amount of money to the payee or as the case may be, to the holder in due course of the cheque within 15 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... learned Counsel for the respondent relied upon the decision reported in AIR1988Guj5 wherein it is held that the notice sent under certificate of posting cannot be deemed to have been served, observing that it is not unknown or unusual where these kinds of endorsements have been got made by the postman without proper care and sometimes deliberately false. In that case the notice sent by registered post was returned as refused. In another decision relied upon by the respondent reported in ILR 2005 Kar 409, the notice sent to the correct address of the drawer was returned with the endorsement that door of the house was locked. In 2006(1) SC 47 the Supreme Court held that certificate of posting obtained by a sender is not comparable to a receipt for sending a communication by registered post - The case with which such certificates can be procured by affixing ante-dated seal with the connivance of any employee of the post office is a matter of concern. Here in the case on hand the position is different. In this case the contention of the appellant is that the notice was served on one of the inmates of the respondent's house, whereas the respondent contended that he had not authoris ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... by the accused by proving the contrary - Mere denial or rebuttal by accused to the reply to the legal notice sent by the complainant not enough - Accused had to prove by cogent evidence that there was no debt or liability. 17. The complaint discloses that the accused-respondent stated to had facing acute financial problems and he was badly in need of funds to discharge the loans he had made with private parties and hence the appellant paid Rs. 1,00,000/- by issuing two cheques. The appellant has stated that both the cheques are in the custody of Canara Bank, Yediyur Branch, and he reserved his right to summon the cheques at the time of trial. Thus, there was no impediment to the appellant to summon the cheques or produce his statement of Bank account. PW. 1 in his evidence does not say anything about the shares except deposing about collateral security. Therefore, the court below has rightly concluded that it is not safe to conclude that the appellant had advanced loan to the accused-respondent, relying on the evidence of PW. 1 alone. 18. According to the complaint, the appellant advanced the loan on the condition that he should give collateral security and post dated cheque ..... 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