JUDGMENT : SANJAY KUMAR JAISWAL, J. 1 This appeal is preferred under Section 378(4) of the Code of Criminal Procedure, 1973, against the judgment dated 23.09.2021 passed in Criminal Appeal No. 108/2019 by learned Sessions Judge, Rajnandgaon, District - Rajnandgaon (C.G.), whereby the respondent has been acquitted for the offence punishable under Section 138 of N.I. Act. Criminal Appeal No. 108/2019 arose out of judgment dated 30.10.2019, in Criminal Case No. 3271/2017 by the Judicial Magistrate First Class, Rajnandgaon, District – Rajnandgaon (C.G.), wherein the respondent was convicted and sentenced for the offence punishable under Section 138 of N.I. Act. 2 The facts of the case, in brief, were that complainant/appellant Kumaril Hirwani, describing accused Vishnu Soren as a neighbour and acquaintance of his brother-in-law, filed a complaint alleging that the accused had borrowed Rs.1,50,000 (one lakh fifty thousand rupees) from him to meet household needs. To repay the amount, the accused provided the complainant with an account payee cheque No. 022512, dated 05/05/2017, for the amount of Rs.1,50,000 (Ex.P-1), from his account with UCO Bank, Naya Raipur branch. The complainant deposited the check in his account with the State Bank of India, Dongargaon branch, for payment. However, according to the memorandum received from the bank, Exhibit P-2, dated 21/06/2017, the check was returned unencashed due to insufficient funds in the account. Subsequently, the complainant sent a legal notice (Exhibit P-3) to the accused demanding the amount, the registered postal receipt of which is Exhibit P-4. The accused refused to accept the notice and was returned as Exhibit P-5 with a note. When the accused failed to pay the check amount within 15 days of receiving the notice, the complainant filed a complaint under Section 138 of the Negotiable Instruments Act on 07/09/2017. During trial, only the complainant examined himself. In his statement under Section 313 of the Code of Criminal Procedure, the accused denied the complainant's evidence, declared himself innocent, and presented no evidence in his defence. 3 Vide judgment dated 30/10/2019 passed by the trial Court, Judicial Magistrate First Class, Rajnandgaon, District-Rajnandgaon, (C.G.) in Criminal Case No. 3271/2017 “Kumaril Hirwani vs Vishnu Soren”, the accused was convicted and sentenced as under:- 4 The Sessions Court allowed the appeal against the above conviction and sentence of the trial Court and acquitted the accused. Hence, this appeal. 3 Vide judgment dated 30/10/2019 passed by the trial Court, Judicial Magistrate First Class, Rajnandgaon, District-Rajnandgaon, (C.G.) in Criminal Case No. 3271/2017 “Kumaril Hirwani vs Vishnu Soren”, the accused was convicted and sentenced as under:- 4 The Sessions Court allowed the appeal against the above conviction and sentence of the trial Court and acquitted the accused. Hence, this appeal. 5 Learned counsel for the appellant submits that the learned appellate Court committed gross error by holding that the complainant had not examined any witnesses in support of his complaint and also held that the complainant had neither mentioned the date on which the said cheque was dishonored and returned to his bankers State Bank of India Branch Dongargaon nor the complainant had mentioned the date on which the accused had refused to accept notice which was served on him by complainant. He further submits that the Sessions Court overlooked the fact that the accused neither denied his signature on the cheque nor denied the fact of issuing the cheque. In such circumstances, Section 138 of the Negotiable Instruments Act presumes in favour of the complainant. The Sessions Court's conclusion in this regard is not justified, and the acquittal is not sustainable. Therefore, the appeal is liable to be allowed. 6 Learned counsel for the respondent/accused supported the impugned judgment, submitting that the learned trial Court has passed an appropriate order after going through the entire oral as well as documentary evidence, which does not call for any interference. 7 Heard learned counsel for the parties and went through the entire record with utmost circumspection. 8 The first ground on which the accused was acquitted by the Sessions Court was that the complainant had failed to prove that the cheque in question was given to him by the accused in full or in part for the discharge of any debt or other liability. 9 In the complaint under consideration, the complainant presented his own evidence, but the accused did not present any evidence. The complaint does not mention the date of the loan. The accused did not challenge his signature on the cheque in question. The accused did not take the defence that he did not issue the disputed cheque (Exhibit P-1) in favour of the complainant. The complaint does not mention the date of the loan. The accused did not challenge his signature on the cheque in question. The accused did not take the defence that he did not issue the disputed cheque (Exhibit P-1) in favour of the complainant. Instead, during the cross-examination of the complainant, the defence was that he had borrowed Rs.25,000 from the accused on interest, which he had returned in cash. 10 Section 139 of the Negotiable Instruments Act states as under:- “ 139. Presumption in favour of holder .- It shall be presumed, unless the contrary is proved, that the holder of a cheque received the cheque, of the nature referred to in Section 138 for the discharge, in whole or in part, of any debt or other liability.” 11 In the matter of K. Bhaskaran v. Sankaran Vaidhyan Balan reported in (1999) 7 SCC 510 , where the Hon’ble Supreme Court held that, when the signature on the cheque in question is admitted, presumption under Section 139 shall arise. In para 9 it was observed as under:- “9. As the signature in the cheque is admitted to be that of the accused, the presumption envisaged in Section 118 of the Act can legally be inferred that the cheque was made or drawn for consideration on the date which the cheque bears. Section 139 of the Act enjoins on the Court to presume that the holder of the cheque received it for the discharge of any debt or liability. The burden was on the accused to rebut the aforesaid presumption. The Trial Court was not persuaded to rely on the interested testimony of DW-1 to rebut the presumption. The said finding was upheld by the High Court. It is not now open to the accused to contend differently on that aspect.” 12 The High Court of Delhi in the matter of V.S. Yadav v. Reena reported in 2010 SCC OnLine Del 3294 , held in para-8 as under:- “8. The respondent has placed reliance on Krishna Janardhan Bhat v. Dattatraya G. Hegde, 2008 Crl. L.J. 1172, which is also the case relied upon by the Trial Court. In this judgment itself Hon'ble Supreme Court has specifically observed that Court should not be blind to the ground realities and the rebuttal of presumption under Section 139 of N.I. Act would largely depend upon the factual matrix of each case. L.J. 1172, which is also the case relied upon by the Trial Court. In this judgment itself Hon'ble Supreme Court has specifically observed that Court should not be blind to the ground realities and the rebuttal of presumption under Section 139 of N.I. Act would largely depend upon the factual matrix of each case. The Trial Court in this case turned a blind eye to the fact that every accused facing trial, whether under Section 138 of N.I. Act or under any penal law, when charged with the offence, pleads not guilty and takes a stand that he has not committed the offence. Even in the cases where loan is taken from a bank and the cheques issued to the bank stand dishonoured, the stand taken is same. Mere pleading not guilty and stating that the cheques were issued as security, would not give amount to rebutting the presumption raised under Section 139 of N.I. Act. If mere statement under Section 313, Cr. P.C. or under Section 281, Cr. P.C. of accused of pleading not guilty was sufficient to rebut the entire evidence produced by the complainant/prosecution, then every accused has to be acquitted. But, it is not the law. In order to rebut the presumption under Section 139 of N.I. Act, the accused, by cogent evidence, has to prove the circumstance under which cheques were issued. It was for the accused to prove if no loan was taken why he did not write a letter to the complainant for return of the cheque. Unless the accused had proved that he acted like a normal businessman/prudent person entering into a contract he could not have rebutted the presumption under Section 139, N.I. Act. If no loan was given, but cheques were retained, he immediately would have protested and asked the cheques to be returned and if still cheques were not returned, he would have served a notice as complainant. Nothing was proved in this case.” 13 Hon’ble Supreme Court in the matter of Bir Singh v. Mukesh Kumar , reported in (2019) 4 SCC 197 , which deals with presumption under Section 139 NI Act, basis which, it was contended that since respondent failed to lead evidence post statement under Section 313 CrPC, burden was on the accused/respondent to prove that the cheque was not issued by him. Also, respondents did not bring any material to rebut presumption under Section 139 NI Act, which is in favour of the cheque holder. 14 In light of the above judgment, based on the evidence presented in this case, it is concluded that the accused did not deny his signature on the cheque in question. He admitted borrowing a sum from the complainant. Therefore, a presumption under Sections 118 and 139 of the Negotiable Instruments Act, 1881, falls in favour of the complainant. The burden of rebuttal rests on the accused, but he has not presented any evidence. Just as the complainant suggested in his cross-examination that he had repaid the borrowed amount of Rs.25,000, no evidence was presented regarding that repayment. If he had issued a signed cheque in favour of the complainant, and it served as security, the accused should have demanded the return of the signed cheque along with the repayment of the loan amount of Rs.25,000. However, there is no evidence that he made any such demand to the complainant. In such circumstances, the Sessions Court's conclusion is found to be unsustainable. 15 Second ground for the accused's acquittal was that the bank's dishonour memo, Exhibit P-2, is undated. However, a registered postal envelope is enclosed with Exhibit P-2. This clearly indicates that the said bank memo, Exhibit P- 2, was sent to the complainant by registered post from the State Bank of India, Dongargaon Branch. According to the postal receipt affixed to it, the post was sent on June 20, 2017. According to the note, the post was received by the complainant on June 21, 2017. The complainant also stated in his complaint and evidence that he received the cheque dishonour memo, Exhibit P-2, on June 21, 2017. In such a case, the undated bank memo, Exhibit P-2, does not adversely affect the complaint. 16 The third ground for the acquittal of the accused was that the legal notice sent to the accused by registered post, Exhibit P-5, does not contain the date of "refusal to accept". 17 It is clear from the complainant's evidence that he sent the legal notice of dishonour by registered post, the postal receipt of which is Exhibit P-4. The sealed envelope returned with the accused's notation "refusal to accept" is Exhibit P-5. Refusal to accept a notice or process is also considered proper service. 17 It is clear from the complainant's evidence that he sent the legal notice of dishonour by registered post, the postal receipt of which is Exhibit P-4. The sealed envelope returned with the accused's notation "refusal to accept" is Exhibit P-5. Refusal to accept a notice or process is also considered proper service. 18 Section 27 of the General Clauses Act, 1897, with reference to service by post, states as under:- “ 27. Meaning of service by post. – Where any 1 [Central Act] or Regulation made after the commencement of this Act authorizes or requires any document to be served by post, whether the expression “serve” or either of the expressions “give” or “send” r any other expression is used, then, unless a different intention appears, the service shall be deemed to be effected by properly addressing, pe-paying and posting by registered post, a letter containing the document, and, unless the contrary is proved, to have been effected at the time at which the letter would be delivered in the ordinary course of post.” 19 In accordance with the above provision, the notice in Exhibit P-5 was sent by registered post to the accused at the registered address indicated in the complaint. During the complainant's cross-examination, the accused did not challenge the above address. Therefore, it will be presumed that the accused received the notice. In such circumstances, the fact that the accused refused to accept the notice is not particularly significant. According to the postal receipt, the notice was sent on 21.07.2017. The complaint was presented before the Court on 07.09.2017. Therefore, there is no objection that the complaint was filed outside the time limit. In such circumstances, the date on which the accused "refused to accept" is irrelevant, as it is clear that he did not pay the amount of the cheque to the complainant within 15 days from 21.07.2017. Under Section 138(c), the failure to pay within 15 days of receipt of the notice arose, giving rise to legal action. Thus, this Court finds that the acquittal passed by the Sessions Court is not proper and therefore, it is not sustainable. 20 Accordingly, the appeal against the acquittal is allowed and the judgment of acquittal passed by the learned Sessions Court is set aside. The conviction for the aforesaid offence passed by the trial Court is affirmed. Thus, this Court finds that the acquittal passed by the Sessions Court is not proper and therefore, it is not sustainable. 20 Accordingly, the appeal against the acquittal is allowed and the judgment of acquittal passed by the learned Sessions Court is set aside. The conviction for the aforesaid offence passed by the trial Court is affirmed. 21 So far as the sentence imposed by the trial Court is concerned, the simple imprisonment for 6 months is set aside. However, the compensation amount under Section 357(3) of the Code of Criminal Procedure is hereby enhanced to Rs.3,00,000/- from Rs.1,70,000/-. In the event of failure to pay the enhanced compensation by this Court, accused/respondent Vishnu Soren shall be liable to undergo simple imprisonment for six months. 22 The Registry is directed to send a copy of this judgment along with the original record, forthwith to the trial/appellate Court for information and compliance.