1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY NAGPUR BENCH, NAGPUR CRIMINAL REVISION NO. 217 OF 2010 (Ashok Bhikhaji Tayde .vs. Wasudeo Ramchandra Ravatkar and anr.) ................................................................................................................................ Office Notes, Office Memoranda of Coram, appearances, Court's orders Court's or Judge's order of directions and Registrar's orders ................................................................................................................................ CORAM : A.P. BHANGALE, J. DATED : 12th July, 2011. Heard Mr. M.P.Kariya, Adv. for the applicant, Mr.N.L.Jaiswal, Adv. for respondent no.1 and Mr.D.M.Kale, A.P.P. for respondent no.2. This application is directed against the impugned judgment and order dismissing the Criminal Appeal No.54 of 2009 by the learned Additional Sessions Judge-1, Akola on 2.12.2010. The said appeal arose from the judgment and order dt. 4.7.2009 passed in Summary Criminal Case No.1611 of 2008 by the learned Judicial Magistrate, First Class, Court No.,2, Akola. Both the Courts below, by their concurrent judgments, held the revision applicant herein (Original accused) is guilty of the offence punishable u/s. 138 of the Negotiable Instruments Act. The contention which is advanced on behalf of the applicant is that there was no due service of notice of demand sent to him on 6.3.2008 (Original accused) and therefore, for want of service, no valid cause of action 2 arises in favour of the complainant. The learned Advocate for the applicant, therefore, prayed for quashing and setting aside the judgment and orders passed by the Courts below. The said contention is opposed by the learned Advocate for the respondent/complainant on the ground that all necessary ingredients of offence punishable under Section 138 of the Negotiable Instruments Act were established. The cheque dt.16.1.2008 bearing No.294201 for a sum of Rs.70,000/- was drawn upon Sumita Urban Co-operative Bank Ltd., Akola. The cheque was returned dishonored with remarks “funds insufficient”. Thus, notice of demand, dt.6.3.2008 was sent by the complainant through his Advocate by Registered Post A/D. as well as Under Certificate of Posting. It is contended that there is presumption of service when address of the accused on the postal certificate was nowhere denied. It is the same address on which even the complaint proceedings were served upon the accused. The registered envelope was returned with postal remarks “refused”. The learned trial Magistrate did consider these aspects about address of the accused to which the notice by Registered Post A/D. as well as Under Certificate of Posting was sent. Looking into the documentary evidence as well as the evidence by way of affidavit, cross-examination, necessary ingredients of the offence punishable u/s. 138 3 of the Negotiable Instruments Act, particularly with reference to statutory presumptions arising u/ss. 118 and 139 of the Code as to consideration of the Negotiable Instruments as also presumption in favour of holder that he had received cheque for discharge of whole or any part of any debt or other liability. Prima facie, it appears established that the cheque in the sum of Rs.70,000/- was drawn by the accused in favour of the complainant from his account which, when presented on 1st March, 2008 by the complainant, was returned dishonoured with intimation “funds insufficient” and despite the demand notice sent in writing by Registered Post A/D. as well as Under Certificate of Posting, the accused has failed to make payment of the said amount to the payee within the statutory period. That being so, no infirmity whatsoever can be found in the impugned judgment and order. On the point of sentence, the learned Advocate for the revision applicant contended that sum of Rs.1,05,000/- is already deposited in the Sessions Court as well as in this Court. The learned Advocate for the respondent (complainant) do not dispute the fact that the amount has been deposited in the Courts. He prayed for grant of permission to withdraw the same by the complainant. According to him, if the complainant receives the entire amount as ordered by the Courts 4 below, the complainant would no longer be interested to send the accused to prison. In view of these submissions, the impugned judgment and order is modified. The conviction of revision applicant for the offence punishable u/s. 138 of the Negotiable Instruments Act is confirmed with modification that the revision applicant shall undergo simple imprisonment till rising of the Court and the amount deposited by the revision applicant in the Courts in the sum of Rs.1,00,000/- shall be paid to the complainant as ordered by the trial Court. Rest of the amount deposited by the revision applicant shall be realised towards amount of fine. The revision stands disposed of accordingly. JUDGE jais