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8. As already stated supra, the proprietor of complainant finance has examined himself as PW-1 and got marked 20 documents as Ex-P1 to P.20. He has filed affidavit in lieu of his examination-in-chief reiterating the entire averments of the complaint. Ex-P4 is the cheque dated 17.11.2021 and Ex.P.5 is the Bank endorsement. From these documents, it discloses that the complainant SCCH - 26 6 CC No.8333/2022 has presented the cheque at his banker for collection, but the same has been returned to him with endorsement "NON CTS cheque". Ex-P6 is the legal notice dt.16.12.2021, Ex-P7 is the postal fee paid receipt, Ex.P.8 is the postal acknowledgment. These documents disclose that on 16.12.2021 the complainant has issued legal notice to the accused demanding him to pay the cheque amount. But the said notice has been returned to him with endorsement "NON CTS cheque".

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 or any debt or other liability.

12. It is relevant to note that the presumption available u/s 118 of NI Act and u/s 139 of NI Act are rebuttable in nature. The accused has chosen to rebut the presumption by way of cross examination of PW-1. The learned counsel for the accused has cross examined PW1 at length. I have perused the entire cross-examination. From cross-examination of PW-1 it indicates that the accused has taken up a defence that the complainant obtained cheque from him for the purpose of security at the time of chit bid. Further he has taken up a defence that he has not been served with demand notice and not produced any documents respect of loan transactions. Further he has taken-up a defence that he has paid the entire balance amount to the complainant, but in spite of SCCH - 26 8 CC No.8333/2022 it, complainant by misusing his cheques given for security purpose has filed this false case against him. Further he has taken defence that, cheque is return as Non CTS Cheque, this ground is not attracted the u/sec.138 of NI Act. These defences are clearly denied by PW1.

15. Learned counsel for accused has filed written SCCH - 26 9 CC No.8333/2022 argument, it is contended that complainant was running chit fund and upon a successful bid he took the chit money and as per practice of the complainant firm he had to give a signed cheque while taking the chit money which was fully repaid, but due to the carona situation he could not take back the cheque from complainant, which cheque complainant has fraudulently misused. The cheque being of older form - non CTS itself is proof that it was issued long age, and complainant's Bank could not process it as such chequeq had become stale by the time complainant tried to make use of its. The complaint does not fall within the ambit of sec 138 of NIA as the cheque in question was not dishonored as claimed by the complainant. That the collecting banker could not present the cheque in question to the drawee bank through CTS clearing, the said cheque being non CTS cheque as revealed by the return memo marked as Ex.P.5. The said cheque was returned to the complainant with the cheque return memo stating that the cheque could not be presented to the drawee bank by the collecting banker through CTS clearing, when the cheque could not be SCCH - 26 10 CC No.8333/2022 presented at all to the drawee bank, the question of dishonor does not arise of. CTS means cheque transition system wherein the cheque when presented the physical movement of the cheque is transacted electronically to the drawee bank, the cheque is question could not be presented in the CTS clearing because the said cheque did not fit into the system of CTS clearing being of older version. Hence it is a non CTS cheque, even though it is a negotiable instrument. The accused could not have been charged for the offence punishable under sec 138 of NI Act without presentation and dishonor of a cheque. That the complainant ought to have filed a civil suit on the basis of the said cheque or else demanded CTS cheque from the accused returning the non CTS cheque to accused but the complainant in order to extract money which was not due from accused went ahead and filed a criminal case knowing fully well that the cheque is neither presented, nor dishonored but was returned by his banker as no presentable and mislead the Hon'ble court to register the case as CC. The accused had been wrongfully implicated in this criminal case, made to SCCH - 26 11 CC No.8333/2022 undergo hardship for seeking bail, attending court number of times for which complaint is liable to pay Rs.1,00,000/- as compensation for malicious Prosecution, Secondly as per the admission of the complainant in cross examination the accused if at allowed any money it could only be towards the partnership firm and not to the complaint as an individual, the cheque in question being in the name of the complainant is invalid as the payee is not the partnership firm. Also complainant firm has filed the case but not furnished Income Tax details of the firm.

17. Further it is relevant to note that the accused has taken-up a defence that no notice has been served on him as per Section 138 of NI Act. But on perusal of Ex-P 8 to 12, it is clear that the complainant issued legal notice to the accused to the address as shown in the cause title of the complaint through RPAD. As per Ex- P11 and 12, addressee Left and insufficient address, but EX.P-2 and 4 the address of the accused is same with SCCH - 26 13 CC No.8333/2022 cause title of the complainant, in this case, the accused has not denied the EX.P-1 to P-5, hence the complainant has issued legal notice as per EX.P-8 to accused address furnished by the accused to the complainant at the time of execution of EX.P- 2 and 4. In view of Section 27 of General Clauses Act, if a letter is sent through Registered Post Acknowledgment Due, it is deemed to be served to the proper address, unless the contrary is proved. But in the instant case, the accused has not adduced any evidence to show that he has not been served with mandatory notice as required u/s 138 of NI Act. Therefore, the said defence taken-up by the accused holds no water. The accused has taken-up another defence that he has already repaid entire cheque amount in favour of complainant. But he has not produced single piece of document to show the same. Therefore, the defence taken-up by the accused that he has repaid the entire cheque amount holds no water. The accused has taken-up another defence that reasons for non CTS cheque is not fall U/sec.1385 of under NI Act, but the Hon'ble High court of Himachal Pradesh in Prem lal V/s SCCH - 26 14 CC No.8333/2022 State of Himachal Pradesh dated 12-01-2024, it is held that Non CTS cheque remains valid as negotiable Instruments and can be the basis for a complainant under section 138 of the NI Act.