B. Kemal Pasha, J.

Can the dishonour of a cheque issued by the drawer by affixing his/her old signature after the change of his/her signature and intimation of such change to the bank, whatever be the reason shown by the banker for its dishonour, invite an offence under Section 138 of the Negotiable Instruments Act?

2. This appeal on special leave has been preferred by the complainant in C.C.No. 477 of 2006 of the Chief Judicial Magistrate's Court, Alappuzha, challenging the judgment of acquittal passed by the court below under Section 255 (1) of the Code of Criminal Procedure.

3. The case before the court below is, as a result of a private complainant filed by the appellant herein as complainant, against the first respondent herein as accused, alleging an offence punishable under Section 138 of the Negotiable Instruments Act.

4. The case of the appellant is that the first respondent had borrowed an amount of Rs.62,000/- from him for her business purpose on 10.03.2006 and, in discharge of the said liability, issued Exhibit P1 post dated cheque to him. When the appellant presented Exhibit P1, it returned dishonoured with the dictum `account closed'. A notice as contemplated under Section 138(b) of the Negotiable Instruments Act was caused to be issued at the instance of the appellant to the first respondent. According to the appellant, she accepted the notice by affixing a false signature and did not care to repay the amount and also did not care to send any reply.

5. On the side of the complainant, PWs 1 to 3 were examined before the court below and Exhibits P1 to P5 were marked. On the side of the first respondent, DW1 was examined and Exhibits D1 to D4 were marked. The court below came to the conclusion that the cheque, even though dishonoured with the dictum `account closed', could not have honoured the cheque even in case where the availability of sufficient funds in the account and account was alive, for the reason that the signature contained in Exhibit P1 cheque was the old signature of the first respondent, which was subsequently changed by her through Exhibit D1 gazette notification, which fact was also duly informed to the bank. According to the court below, therefore, the dishonour of Exhibit P1 cheque could not be sufficient to invite the offence under Section 138 of the Negotiable Instruments Act and on that ground alone, the first respondent was acquitted through the impugned judgment.

6. Heard the learned counsel for the appellant and the learned counsel for the first respondent. It is true that Exhibit P1 cheque was dishonoured by the bank through Exhibit P2 dishonour memo with the dictum `account closed'. It is trite that even when the account is closed after the issuance of a cheque or even prior to the issuance of a cheque, the offence under Section 138 of the Negotiable Instruments Act can be attracted, provided other ingredients of the offence are there. The crucial aspect is that whether there was sufficient funds in the accounts of the accused to honour the cheque at the time when the cheque was presented. When the account is closed, the same has to be considered as equal to the absence of any funds in the accounts of the accused to honour the cheque.

7. In this particular case, it seems that Exhibit P1 cheque contains the old signature of the first accused. It has come out in evidence that she had changed her signature through Exhibit D1 gazette notification with effect from 24.06.2003. It is the case of the first respondent that a blank signed cheque leaf was issued by her to the appellant prior to 24.06.2003 relating to a money transaction between her and the appellant. She had admitted that an amount of Rs.50,000/- was borrowed by her from the appellant in the year 2002, which she had repaid subsequently. According to her, the signed cheque leaf which was obtained by the appellant from her as security was not returned, and the same has been altered and misused as Exhibit P1.

8. Exhibit D3 i