The main legal point established in the judgment is the interpretation of service by post and the requirements for making a demand for payment under Section 138 of the Negotiable Instruments Act, 1881.

This is complainant's appeal against acquittal of the accused under Section 138 of the Negotiable Instruments Act, 1881 (Act, for short) by Judgment/Order dated 21st September, 2002 of the learned Judicial Magistrate, First Class, Vasco-da-Gama, in Criminal Case No. 163/N/2000/D.

2. There is no dispute that the complainant-Credit Society had advanced a loan of Rs. 1,50,000/- to the accused. On or about 9th October, 2000, the accused issued a cheque to the complainant in the sum of Rs.90,000/-drawn on Bank of India, Headland Sada Branch, Vasco-da-Gama. When the said cheque was presented to the Goa State Co-operative Bank Ltd., the same was returned with endorsement "Funds insufficient". The complainant claims to have sent a registered letter dated 23rd October, 2000, informing the accused that the said cheque was returned with the said remark and calling upon the accused to make the payment of Rs.90,000/- within a period of 15 days from the receipt of the said notice.

3. As the said notice was not complied with, the complainant filed a complaint on or about 21st November, 2000, and thereafter, in the course of the trial, the complainant examined their Secretary and produced necessary documents including the said cheque, notice, etc.

4. The learned Judicial Magistrate, First Class, has acquitted the accused on two counts. The first is on the basis that the A. D. card produced by the complainant it could be said that the accused had received the said notice. The second is that what was due and payable by the accused to the complainant as on the date of issuance of the said cheque on 30th September, 2000, was Rs.86,089/- and, therefore, there was no existing liability on the part of the accused to pay Rs.90,000/- being the amount of the cheque issued to the said complainant.

5. Admittedly, the learned Judicial Magistrate, First Class, has concluded that the notice issued was addressed to the accused at her business address, an address which was given by the accused when she obtained the said loan as well as the address where the accused was served with the summons sent to the accused in the said criminal case. It is also an admitted position that the said Secretary who was examined on behalf of the complainant admitted in his evidence that the signature on the A. D. card did not tally with the signature of the accused. On facts, the learned Judicial Magistrate, First Class, concluded that it could not be said that the accused had received the said notice, and therefore, was not liable for an offence under Section 138 of the Act. The learned Judicial Magistrate, First Class also came to the conclusion that the presumption which was otherwise available in favour of the complainant, was rebutted.

6. This first finding of the learned Judicial Magistrate, First Class has been challenged by Mr. M. S. Sonak, learned Counsel of the Appellant by placing reliance on various authorities. It is the submission of Mr. Sonak, learned Counsel that the said Secretary who was examined on behalf of the complainant had at no stage stated that the said signature on the said A. D. card was not that of the accused and that it would be open for any accused to scribble anything on a A. D. card and then turn around and say that the signature was not of the accused. It is his submission that as long as the said registered article was delivered at the business address of the accused, the provisions of Section 138 of the Act r/w. the presumption available to the complainant, would be satisfied.

7. On the other hand, Mr. Nitin Sardessai, learned Counsel of the Respondent/ Accused has submitted that in order to rebut the said presumption it was not necessary for the accused to have stepped into the witness box and the said presumption could also be rebutted from the evidence led on behalf of the complainant. Mr. Sardessai, learned Counsel has submitted that once it was accepted on behalf of the complainant that the signature was not that of the accused