1. In the complaint filed by the appellant under Section 200 of Code of Criminal Procedure (hereinafter for brevity referred to as ‘Cr.P.C’), against the present respondent for the offence punishable under Section 138 of the Negotiable Instruments Act, 1881 (hereinafter for brevity referred to as ‘N.I. Act’), the learned Civil Judge (Jr. Dn) & JMFC, Sullia, Dakshina Kannada (hereinafter for brevity referred to as the ‘trial Court’) in C.C.No.365/2005, pronounced the judgment of acquittal on 18.02.2010. It is against the said judgment of acquittal, the appellant/complainant has preferred this appeal.

2. The summary of the case of the complainant in the trial Court is that the respondent/accused towards the repayment of the debt issued a cheque bearing No.0380 dated 10.12.2004, drawn on Thannirupantha Service Cooperative Bank Limited in favour of the complainant for Rs. 1,50,000/-. When the cheque was presented for realization by the complainant, the same was dishonoured and returned through his banker on 23.12.2004 with an endorsement ‘payment stopped by drawer’. The complainant issued a legal notice to the accused demanding the repayment of the cheque amount within fifteen days from the date of receipt of the notice. However, the said notice returned un-served with a postal endorsement as the addressee was out of station and did not claim the letter. Since the demand made in the legal notice was not met by the accused, the complainant was constrained to file a complaint against the accused for the offence punishable under Section 138 of the N.I. Act.

3. To prove his case, the complainant got himself examined as PW-1 and got marked documents from Exs.P-1 to P-10. No witnesses were examined from the accused side. However, documents at Exs.D-1 to D-12 were marked from his side. After hearing both side, the trial Court by its impugned judgment dated 18.02.2010, acquitted the accused for the alleged offence. It is against the said judgment, the appellant has preferred this appeal.

4. For the sake of convenience, the parties would be referred to as per their ranks before the trial Court.

5. It is the argument of the learned counsel for the appellant/complainant that the trial Court committed an error by holding that there is no service of demand notice upon the accused. It is the contention of learned counsel that once there is tendering of the notice, which was sent to the accused at his correct and complete address even if, the addressee has not received the said letter, there will be a deemed service of notice.

Secondly, it was also the argument of learned counsel for the appellant/complainant that the finding of the Court below that it was a burden on the complainant to prove the existence of legally enforceable debt was also against the statutory presumption operating in favour of the complainant under Section 139 of the N.I. Act. In this regard, learned counsel relied upon two judgments of the Hon’ble Apex Court, which will be referred to at the relevant place here afterwards.

6. Learned counsel for the respondent, in his arguments fairly, submitted that in view of the settled principle of law that once a letter is sent to correct address under a registered post, unless and until the contrary is proved, the service is deemed to have been effected, he would not press the point of alleged non-service of notice upon the accused. However, he submitted that finding of the trial Court, on the merits of the case, does not warrant any interference at the hands of this Court. He also submitted that when the alleged earlier loan is said to have been remained unpaid by the accused then, how come the very same complainant could grant huge sum of loan again to the same accused? He also submitted that the complainant is in the habit of money lending to different people without any license for money lending and that he is also filing criminal cases for the offence punishable under Section 138 of the N.I. Act against those alleged drawers