The legal principle established is that discrepancies in cheque details and incorrect address on the notice may not be substantial enough to warrant acquittal, and legal principles from previous judgments can be relied upon to support the decision.

Heard Mr. Vaz, learned Counsel for the appellant and Mr. Menezes, learned Counsel for the respondent.

2. By this appeal, the appellant takes exception to the judgment and order dated 26/03/2010 passed by the Judicial Magistrate, First Class, Panaji in OA Case No.945/2008/B acquitting the respondent for the offence punishable under Section 138 of Negotiable Instruments Act, 1881 ('the Act' for short).

3. The appellant is the complainant and the respondent is the accused in the above case. The parties shall hereinafter be referred to as per their status before the Trial Court.

4. The complainant filed the above criminal case against the accused for dishonour of cheque dated 21/02/2008 for an amount of Rs.67,000/-drawn on ICICI Bank which according to the complainant, was issued by the accused towards repayment of the loan taken by the accused. The cheque was presented by the complainant for payment.

The same was dishonoured on 11/06/2008 with an endorsement 'insufficient funds'. Thereafter, the complainant issued the notice dated 01/07/2008 by Registered Post A.D. which according to the complainant, was refused by the accused although the accused was intimated about the said notice. Since the accused did not make payment, the complainant filed the above criminal case and examined himself in support of his case. The defence of the accused was of total denial. He also pleaded that notice sent by the complainant under Section 138 of the Act, was not addressed on the correct address of the accused and he had not received the same. The statement of the accused under Section 313 of Cr.P.C., was recorded. The accused also filed written statement in which he stated that he had borrowed sum of Rs.30,000/-in the month of February 2008 and repaid the same with interest in 3 instalments of Rs.12,000/-, Rs.10,000/-and Rs.10,000/-respectively. The accused examined DW1 Ritesh Rane.

In the course of evidence of the complainant, the complainant relied upon the notice with A. D. card issued to the accused and endorsement of the postal department (exhibit 22 collectively). The complainant also placed on record agreement dated 13/02/2008 entered into between the complainant and the accused pursuant which an amount of Rs.67,000/-was advanced to the accused.

5. Learned Magistrate recorded the order of acquittal primarily on the following two grounds:

(i) The complainant had stated that cheque bearing no.512418 was issued but the same was actually bearing no.105137 which number was also found on the cheque return memo.

(ii) The notice issued by the complainant under Section 138 of the Act to the accused, was not on the correct address.

6. Mr. Vaz, learned Counsel appearing for the appellant / complainant submitted that both the grounds on which learned Magistrate has acquitted the accused are untenable in law. According to Mr. Vaz, both the numbers i.e. 512418 and 105137 appear on the cheque and the complainant being a layman, was not expected to mention the actual number of the cheque i.e. 105137 and in any case, the accused had not disputed his signature on the cheque and, therefore, learned Magistrate could not have acquitted the accused on this ground. The stamp on the envelope in which notice was issued, clearly discloses that the notice was unclaimed and, therefore, there is presumption of service of notice on the accused. Mr. Vaz further submitted that the accused was very much aware of the notice issued by the complainant and in spite of intimation having been given to him, the accused chose not to claim the same with a view to avoid liability in respect of the cheque. Mr. Vaz placed reliance upon the judgment of the Apex Court in the case of P. Venugopal Vs. Madan P. Sarathi; (2009)1 SCC 492).

7. Per contra, Mr. Menezes, learned Counsel appearing for the respondent/ accused supported the impugned judgment and order, and submitted that learned Magistrate was justified in acquitting the respondent / accused for the offence punishable u