The appellant/complainant did not succeed in his prosecution launched alleging offence punishable under Section 138 of the Negotiable Instruments Act against the respondent. According to him, the accused borrowed an amount of Rs.40,000/-. When repayment demanded he issued Ext.P1 cheque on 20.3.1999. When it was presented to the Bank on the same day, it bounced. This was orally intimated to the accused, who told the complainant to wait for some more days. Therefore it was represented on 11.8.99. But it bounced again on the ground that there was no sufficient fund in the account maintained by the accused, the drawer of Ext.P1 cheque. Therefore, he issued a notice demanding payment of money covered by the cheque on 14.8.1999 by registered post. This was returned as unclaimed in spite of service of intimation on the addressee as is revealed by Ext.P5 return letter. There upon the complaint was instituted. The accused has not denied drawal of cheque, Ext.P1 and the signature there on. His case is that he had been residing on the date mentioned in Ext.P1 and the period around it in Aluva and not in Manjeri where the cheque was issued. He had produced the ration card Ext.D1 to show that he had been taking ration articles from the shop near Aluva during the said period. He had also produced Ext.D2 pass book during the said period covered by Ext.P1. He did not have any bank transaction. According to him he had issued Ext.P1 cheque to the Merchants’ Association in Manjeri in 1994. It had been clandestinely made use of by the complainant to foist a case. Therefore it is not in discharge of any legally recoverable debt either in whole or in part.

2. The complainant had adduced evidence by examining himself and PW2 the postman to show that he had given intimation to the addressee in Ext.P5 and that the permanent residence of the addressee in Ext.P5 was in Manjeri at the relevant point of time. The bouncing of the cheque has been duly proved by Ext.P2 memo and the date of arising of the cause of action and the filing of the complaint in time has been proved on the strength of Ext.P3 notice and Ext.P4 postal receipt and Ext.P5 return letter. The court below appreciating the evidence in this case came to the conclusion that around the period covered by Ext.P1 there was no bank transaction by the accused and that he had been residing in Aluva. Therefore the cheque could not have been issued by him.

3. This conclusion cannot be sustained because admittedly accused/respondent had issued Ext.P1 cheque, though to some other person. But he did not have any case how this has come in the hands of the complainant. He had never complained to the police or even to the merchant’s association about this cheque coming to the hands of the complainant either before the complaint or after the complaint. He has no case that the complainant had stolen the cheque from his hands or from the office of the merchant’s association. When Ext.P1 is a cheque drawn by him on a bank in which the accused maintained an account, it cannot be stated, by producing a ration card to show he was purchasing ration articles from Aluva that he was not in the place where the cheque has drawn. That is not sufficient to rebut the presumption available under Section 118 and 139 of the N.I. Act against him.

4. It is thus proved that he had drawn the cheque. When a cheque is so drawn, unless otherwise proved, it shall be only in discharge of a liability. That cheque bounced as is revealed by Ext.P2 for want of funds. There was notice with demand as is revealed by Ext.P3 to Ext.P5, as statutorily enjoined in clause (b) of the proviso to Section 138 of the N.I Act.

5. It is true that, as contained in the judgment impugned the cheque Ext.P1 had been presented on 20.3.99 itself. It bounced on that date. It is also discernible from the evidence on record that the complainant had intimated orally to the accused about the bouncing. The court below had taken it as a notice. When the dep