The appellant/complainant has come up with this appeal challenging the order of acquittal passed by the trial Court in C.C. No. 1605/99 dated 7-2-2002 thereby dismissing the complaint filed by him against the respondent for the offence punishable under Section 138 of Negotiable Instruments Act.

2. The trial Court dismissed the complaint filed by the appellant/complainant mainly on the ground that there was no legally recoverable debt under the cheque and that there is no proper service of statutory notice on the respondent.

3. Heard the arguments of learned counsel for both the parties and perused the records.

4.lt is argued by the learned counsel for the appellant that non-denial of the issuance of the cheque by the respondent conclusively establishes existence of debt and that the cheque has been issued in discharge of the same. He pointed out that when the notice was sent by RPAD/UCP by properly addressing, pre-paying posting stamps and cover containing necessary by document, even if it is received by any of the adult members of the family other than servant id held to be sufficient. In this case the wife of the respondent received the notice and this fact is corroborated by the testimony of DW.2 and has not been rebutted by the respondent. Mere handing over the share certificate with blank transfer from and without the agreement executed between the seller and the purchaser could not have construed to be sale of shares legally. Therefore the findings of the Magistrate are erroneous and hence the order of acquittal cannot be sustained.

5. On the other hand, the learned counsel for the respondent submitted that the dishonoured cheque in question was not in respect of a legally enforceable debt, that the cheque was presented beyond six months from the date of its drawl that the notice was not received by a person authorized by the respondent and that the alleged loan was advanced through cheque, but the appellant has not produced the bank pass book and therefore the Magistrate has rightly acquitted the respondent.

6. I n support of their respective contentions both sides have placed reliance on a number of decisions.

7. The complainant-appellant stated to have lent sum of Rs. 1,00,0001- to the accused on 16-6-1996 by way of two self cheques, one for Rs.78,000/- and another for Rs. 12,0001and a sum of Rs.10,0001- by cash. In all RS.1,00,000/- on demand, the respondent issued a post dated cheque dated 23-9-1998 for RS.1 ,00,0001-.ln addition the respondent also gave 20,000 equity shares of M/s. Grant Lease Florex Ltd., Bangalore, of the face value of Rs. 101- each. The cheque when presented to the bank bounced for the reason of insufficient funds. The complainant issued a legal notice to the respondent through RPAD and UCP, which was served on one of the in-mates of the house of the accused. Since the respondent did not pay the cheque amount, the complainant filed CC NO.16051/99.

8. The respondent contested the said case mainly on the ground that the complainant purchased 20,000 shares of M/s. Grant Lease Florex Ltd. belongings toone Mukunda of the market value of Rs.2,20,000/- out of which the complainant had paid Rs.1,00,000/- to Mukunda on the same day by cash. The transaction took place in the presence of the respondent. At the time of transaction the complainant asked the respondent to give a blank cheque as guarantee and accordingly he issued a blank cheque and therefore the dishonoured cheque was not in relation to legally enforceable debt, as such the respondent cannot be held guilty under s.138 of the N.I. Act.

9. The trial court held that there is real dispute between the parties with regard to the issuance of cheque towards discharge of the existing debt, and if really the complainant had lent the amount through cheques, there was no impediment to the complainant to produce the bank pass book to show that he had advanced loan thorough cheques and the absence of documentary evidence, it is not safe to rely on the sol