( 1 ) THIS appeal arises out of the judgment of the Additional Judicial First Class magistrate, Narsapur in Calendar Case No. 168 of 1994 wherein he acquitted the accused herein of the charge under Section 138 of the negotiable Instruments Act.

( 2 ) THE complainant who is the appellant before this Court strenuously contended that the Magistrate dismissed the complaint without applying his mind to the material available on record whether the action of the accused attracts the provisions of section 138 of the Negotiable Instruments act or not and he based his finding on mere surmises and conjectures.

( 3 ) I have gone through the judgment of the Court below. I have no hesitation to hold that the Magistrate dismissed the complaint for the sake of dismissal without applying his mind to the facts of the case and without discussing the oral and documentary evidence available on record and needs interference to prevent injustice to the appellant.

( 4 ) THE case of the appellant herein is that on 26-09-1994 the respondents- accused purchased lace from his industry worth Rs. 60,000/- in the presence of PW4 and PW5 under Ex. P5 the commercial invoice and issued cheque for Rs. 60,000/- which was marked as Ex. P1. On presentation of the cheque, the Branch Manager returned the cheque with an endorsement "limits cancelled". Immediately, thereafter, the appellant got legal notice issued on 13-09-1994. It is his further case that on 01-10-1994 the respondent was sent for and a request was made in person to pay back the amount. But, the respondent failed to pay the amount and the complaint was lodged on 17-10-1994. After receipt of the summons, the respondent in his examination under section 313 Cr. P. C. totally denied the purchase of the lace from the industry and also denied the fact of receiving legal notice sent by him.

( 5 ) TO prove his case, the appellant got himself examined as PW1, the bank official as PW2 to prove that the cheque book was given to the respondent in the year 1984 and the same account was closed in the year 1985 itself, and to prove that Ex. P3 cheque was given from the cheque book given to accused in 1984, PW3 Assistant Superintendent of post Offices was examined to prove that the legal notice issued by the appellant was in fect served on the accused on 03-10-1994 under Ex. P8. PW4 and PW5 were independent witnesses in whose presence the respondent said to have purchased the lace. I have gone through the Judgment of the Court below. The Magistrate did not choose to record a finding whether the transaction took place or not. However, he dismissed the complaint on three grounds : (1) The legal notice was not received by the respondent. He dis-believes, the delivery of the registered letter as the delivery slip maintained by the post Office contained corrections. Though some corrections are there in Ex. P8 firstly, they do not relate to the respondent, secondly these corrections seemed to have been made by the postman white handing over the slip to the Post Office etc. , and they have no relation to the delivery of the letter on accused. From the said slip it is seen that the registered letter sent by the appellant was delivered to the accused on 03-10-1994 under serial No. 1 and the slip does not contain any errors with regard to delivery of the letter on respondent. But, the Magistrate gravely erred in recording the finding that the appellant failed to prove the delivery of the registered notice, In tact a comparison of the signature on Ex. P1, the cheque, and P5 commercial invoice, Ex. P8 delivery slip maintained by the postman will reveal that they are identical even to a layman s eye. Hence, the Magistrate misappreciated the evidence on record in recording the finding and the same cannot be sustained in law.

( 6 ) WITH regard to the other ground that the complaint was not filed as required under section 138 of the Negotiable Instruments act i. e. , the appellant has to give 15 days tome to the pe