A.I.S. Cheema, J.

This Criminal Appeal has been filed by the original complainant (hereafter referred as "complainant") against the acquittal of Respondent No.1 original accused (hereafter referred as "accused") in Summary Criminal Case No.820 of 2012 by J.M.F.C. Court No.20, Aurangabad on 27th June 2013 for offence punishable under Section 138 of the Negotiable Instruments Act, 1881 ("the Act" in brief).

2. The complaint filed by the complainant in the trial Court claimed that the accused was friend of the complainant and they had cordial relations since long and also belong to same community. In Ramzan of 2011 accused was in need of money for his business and approached the complainant with the request of handloan of Rupees One Lakh. Considering the request of the accused and the relations, complainant told the accused that it was a huge amount and it would be preferable to execute an agreement. The accused however, suggested that he will execute cheque of handloan amount for repayment of handloan to which Complainant agreed and gave handloan of Rupees One Lakh in cash to accused. In discharge of the liability to repay the handloan, the accused executed cheque bearing No.000005 dated 1st October 2011 for Rupees One Lakh drawn on Bank of Baroda, Branch Sabji Mandi, Aurangabad, in the name of the complainant. Accused agreed to repay the handloan on the given date of the cheque i.e. 1st October 2011. On the given date, complainant presented the cheque but it returned unpaid with memo dated 1st October 2011 with reason that opening balance was insufficient. Complainant informed this to the accused. Accused said that he was expecting funds in December. As per instructions of the accused, the complainant again presented the cheque on 21st December 2011 but again it was returned unpaid with memo dated 21st December 2011 stating reason that the opening balance was insufficient. Complainant issued demand notice dated 17th January 2012 by R.P.A.D. through Advocate Shakeel Ahmed. Notice was served on 19th January 2012 as on that date the postman gave intimation to the accused but he avoided to accept the notice. The amount remained unpaid and thus the complaint dated 14th February 2012 was filed.

3. The trial Court explained particulars of offence under Section 138 of the Act to the accused. The accused pleaded not guilty. His defence is of denial and as claimed in statement under Section 313 of the Code of Criminal Procedure, 1973 ("Cr.P.C." in brief) defence taken was that blank cheque was issued only against an amount of Rupees Five Thousand which was taken.

4. In the trial Court, the complainant filed his affidavit at Exhibit 20 by way of examination-in-chief on the above lines of the complaint. Complainant came to be cross-examined. Complainant proved the cheque Exhibit 23 which had been issued and the memo from the Bank dated 21st December 2011 at Exhibit 24. The money receipt for sending the notice by Registered Post was proved at Exhibit 25C. Copy of the notice sent was proved at Exhibit 35. From the un-served envelope Exhibit 26(1) trial Court appears to have taken out the notice which was sent in the envelope. It turned out that the notice did not bear any signature and trial Court endorsed the document as not proved by the complainant. Consequently, the complainant examined C.W. No.2 Advocate Shaikh Shakeel Ahmed, who deposed regarding sending of the notice by Registered Post A.D. and claimed that while sending the notice, he did not see on the back side of the notice and thus it remained unsigned by him. It was noticed that there was overwriting in the date of the copy of the notice Exhibit 35 where the printed date was scribbled and another date of 17th January 2012 was written by hand. This Advocate Shakeel Ahmed CW2 claimed that on 5th January 2013 he had to file two examination-in-chiefs in Court and wrongly in another matter of Imran Vs. Ravi while preparing list of documents, Exhibit 35 got wrongly listed and h