The main legal point established is the requirement for evidence to prove insufficiency of funds and the specific amount claimed in the notice under proviso (b) to Section 138 of the Negotiable Instruments Act.

An appeal by special leave against acquittal.

2. The appellant preferred a complaint against the first respondent under S. 142 of the Negotiable Instruments Act, 1881 (for short 'the Act'), alleging an offence under S. 138 of the Act. The trial court by its judgment dated 31-12-1991 entered conviction, sentenced the accused to undergo rigorous imprisonment for one year and directed the accused to pay the complainant a sum of Rs. 40,000/- being the cheque amount with six per cent interest, with the default clause to undergo rigorous imprisonment for a further period of six months. A sum of Rs. 500/- as costs was also awarded.

3. Against that conviction and sentence, the accused preferred an appeal before the Sessions Court, and in the appeal, the conviction and sentence were set aside and the accused acquitted. It is against that acquittal this appeal on special leave is preferred.

4. The complaint was that the first respondent for consideration issued a cheque for Rs. 40,000/- on 9-1-1991, that the said cheque was presented for collection on 11-1-1991, that the same was dishonoured with the endorsement "refer to drawer", that the dishonour was due to insufficiency of funds, that the necessary notice demanding payment was issued, that there was failure to pay the amount and hence the complaint.

5. Since it is an appeal against acquittal, the matter has to be considered with all the restraints in intefering with acquittals.

6. The evidence in the case consists of PW1, the complainant and Exts. P1 to P4. The Appellate Court was of the view that the endorsement "refer to drawer" does not necessarily mean that there was no sufficient funds to honour the cheque, and that the complainant has failed to adduce reliable evidence to prove that the dishonour of the cheque was due to insufficiency of funds in that account.

7. Ext. P2 is the memo returning the cheque. It is in a printed form, showing twentythree reasons and leaving two columns blank for entering any other reason for returning the cheque. The first reason is `refer to drawer'. It is for that reason, the cheque in question was returned. There are other reasons, like 'not arranged for', 'ful cover not received', 'exceeds arrangement' etc. As mentioned earlier, there could be other reasons also than the twentythree reasons printed, and for entering such reason, space is left. If actually there was no sufficient funds, the reason for return could be noted as 'not arranged for', 'exceeds arrangement' or 'full cover not received'. But here, the reason for return was 'refer to drawer'. This Court has ruled in more than one case that the endorsement 'refer to drawer' could mean many reasons including the reason that there was no sufficient fund for honouring the cheque. So, in this particular case, for the complainant to succeed in entering conviction, he has to prove that the endorsement "refer to drawer" in Ext. P2 meant that there was no sufficient fund for honouring the cheque. In that line, the only evidence is the oral testimony of PW1. As indicated earlier, in the complaint it is mentioned that the reason for return of the cheque was insufficiency of funds. The same is repeated in the oral testimony also. The fact that there was no sufficient fund, was one capable of being proved by the examination of the Manager of the Bank or any official of the bank, and production of documents relating to the account maintained by the drawer. Those are items of (best) evidence in the circumstances, to prove that there was no sufficient fund when the cheque was presented and returned.

8. It appears that the complainant was shunning any such items of evidence. In the judgment of the lower appellate Court, it is noticed that at the bar a remand of the case was suggested, but the complainant was resisting that, and in the argument notes presented by the counsel for the complainant it was specifically stated that a remand will not serve any purpose and there may not be any more evi