Law Web: Whether accused in cheque dishonour case can be acquitted if complainant has failed to produce original notice?

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.

IN THE HIGH COURT OF JUDICATURE AT BOMBAY

CRIMINAL APPELLATE SIDE

CRIMINAL APPEAL NO.976 OF 2002

M/s.Rajhans Cloth House V/s. Annappa Fakira Manjalkar

CORAM: K.R.SHRIRAM,J

DATE : 17.10.2019

1. On 14.10.2019 this appeal was called out twice but none

appeared for appellant. It was stood over to 15.10.2019 but due to

paucity of time, could not be taken up, so also on 16.10.2019. Today

when the appeal is taken up for hearing, once again appellant is

absent. Therefore, this Court perused the evidence and the impugned

judgment and the complaint with the assistance of Ms.Malhotra,

learned APP appearing for the State and Mr.Pethe appearing for

respondent no.1.

2. This appeal is filed against an order of acquittal on a complaint

filed by appellant under Section 138 of the Negotiable Instrument

Act.

3. It is the case of 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”.

4. 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.

5. 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.

6. On behalf of the complainant 4 witnesses were examined and as

regards the accused, he himself gave evidence.

7. At the outset, it does appear that the complainant failed to