IN THE HIGH COURT OF JUDICATURE AT PATNA SLA No.50 of 2010 SAHIL KUMAR Versus SANJAY KUMAR GUPTA @SANJU &ANR ----------- 2. 14.07.2010 This is an application for leave to appeal against the judgment of acquittal dated 31st March 2010 of the Judicial Magistrate, 1st class, Patna passed in Complaint case no. 2758 © of 2006, Tr.No. 719 of 2010 whereby the O.P.No.1 Sanjay Kumar Gupta @ Sanju has been acquitted of the charge under Section 138 of the Negotiable Instrument act (hereinafter, in short, referred to as “N.I.Act”). Briefly stated, complainant‟s case was that in course of business transaction, he had advanced money loan to the O.P.No.1 and that towards repayment of the loan, the O.P.No.1 had issued cheque dated 21st April 2006 on ICICI Bank, Patna Branch for Rs.5,00,000/- (five lacs) in favour of the petitioner-complainant with a request that the same should be presented for payment not before August, 2006. Accordingly, the petitioner-complainant presented the cheque to the Bank on 12th August 2006 for payment but the same was dishonored with endorsement „insufficient fund’ and no payment was made to him. The complainant‟s further case was that due to non-payment as a result of dishonour of the cheque, he sent a legal notice to the O.P.No.1 on 25th August 2006, vide registered post. The complainant further alleged that despite sending of the notice, the O.P.No.1 did not make any payment and, hence, he filed complaint on 25th September 2006. During the trial, the complainant proved 3 documents. The cheque was proved as Ext-1, the Bank return memo receipt regarding dishonour of cheque dated 12th August 2006 was proved 2 as Ext-2 and the complaint petition filed by the complainant was proved as Ext-3. The complainant, including himself examined six witnesses in support of his case. C.W.1 Ramakant Singh simply deposed about money transaction and he stated that the O.P.No.1 had borrowed Rs.5,00,000/- from the petitioner-complainant and had promised to return, but he did not return it. He also stated that the O.P.No.1 had given cheque to the complainant but he failed to give any details about the cheque. C.W.2 stated about the money transaction between the complainant and the O.P.No.1 and he also stated that the O.P.No.1 had given the cheque which was dishonored by the Bank and that payment was not made by the O.P.No.1 despite sending of notice to him, but this witness did not say anything about the contents of the notice or the date of sending or the service of notice. C.W.3 deposed on similar lines, without giving any details of the notice or the date of sending or service of notice. C.W.4 was petitioner-complainant himself and he stated about the case saying that the cheque was dishonored and then he sent notice, but despite notice, money was not paid by the O.P.No.1. During his evidence, the C.W.4, the complainant proved 3 Exhibits, namely, Ext-1, 2 and 3 as stated above. The other 2 witnesses, namely, C.W.5 and C.W.6 have given similar evidence about the non-payment of money despite dishonour of the cheque. But these two witnesses have also not given any details of the notice or the date of its service or date of sending of notice. While passing the order of acquittal, the learned trial court considered that the petitioner-complainant did bring on the 3 record the notice which he stated to have sent to the O.P.No.1. Section 138(b) of the N.I.Act enjoins that the payee or the holder in the due course of cheque, as the case may be, makes a demand for payment of the said amount of money by giving a notice, in writing, to the drawer of the cheque within 30 days of the receipt of information by him from the Bank regarding the return of the cheque as unpaid. Thus, it is a mandatory requirement u/s 138(b) of the N.I.Act that notice in writing about the demand of payment of the cheque amount must be made by serving a notice in writing for the purpose. In the instant case, the petitioner-complainant did not bring on the record any notice to show that such demand in writing was made nor any document like any postal receipt for sending the notice was proved on record. No doubt, there was some oral evidence that the notice was sent but law requires strict proof by way of documentary evidence that such notice in writing was sent and served to the O.P. for the demand of payment. Taking into consideration these aspects, the learned trial court considered that the essential ingredients as required under Section 138(b) of the N.I.Act for was not proved by the petitioner-complainant and, therefore, holding that the offence was not proved, the O.P.no.1 was acquitted. On consideration of the fact sand circumstances and the evidence, as discused by the trial court, I do not find any perversity or illegality in the impugned judgment of acquittal. Therefore, the application for leave to appeal is rejected. Jay/ (C. M .Prasad, J.)