Section 138 NI Act: Non production of original demand notice became fatal: HC upheld the acquittal [Read the Order]

Bombay High Court refused to interfere in the acquittal of a person accused of cheque bounce when it found that the complainant did not produce the original demand notice and acknowledgment card.

A bench of Justice Shriram has passed the order in the case titled as M/s.Rajhans Cloth House vs Annappa Fakira Manjalkar on 17.10.2019.

It is the case of complainant/appellant that the accused purchased goods from appellant on credit and the amount payable was Rs.50,293.95/- . The accused paid Rs.293.95/- and promised to pay balance amount of Rs.50,000/- in 4 to 5 days. On 14.8.1999 accused issued post dated cheque for Rs.50,000/- in the name of complainant which cheque when deposited was dishonoured with the endorsement “Refer to drawer”.

The complainant issued a statutory notice on 23.8.1999 and the notice was served on 24.8.1999 despite which the amount was not paid and hence the complaint.

It is the case of the accused that he had not purchased any goods from the complainant but he used to take loan from the brother of the complainant and he had borrowed sum of Rs.30,000/- and the cheque for Rs.50,000/- was given as security towards repayment of amount of Rs.30,000/-. The cheque given was a blank cheque according to accused. Accused had repaid loan by issuing two cheques bearing nos.061588 and 061589 and therefore, that loan account has been closed. The complainant instead of returning the security cheque of Rs.50,000/- tried to encash the said cheque.

Trial court acquitted the accused. Matter reached the High Court which upheld the acquittal giving following reasons:

"At the outset, it does appear that the complainant failed to prove the notice sent by producing the original of the notice.

What was produced is only the photo copy. Moreover, the postal acknowledgment card also has not been produced to prove that notice has been served on the accused.

Moreover, the complainant has also not produced any invoice that proves that there was a legally enforceable debt to the complainant because the invoice which has produced does not indicate anywhere the name of the sole proprietary M/s.Rajhans Cloth House and that document did not have any evidence to prove that the complainant had received the goods mentioned in the document".

Read the Order here:

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