A. Hariprasad, J.

Appeal filed under Section 378(4) Cr.P.C. Appellant is a company registered under the Companies Act. The company filed a complaint before the learned Magistrate against the respondent/accused alleging an offence punishable under Section 138 of the Negotiable Instruments Act, 1881 (in short 'the NI Act'). Learned Magistrate, after trial, convicted the accused and imposed sentence. The accused took up the matter in appeal before the learned Additional Sessions Judge. He reconsidered the matter and reversed the finding of the learned Magistrate and dismissed the complaint, thereby the accused was acquitted. Aggrieved by that decision, the complainant/appellant has approached this Court. Facts in short, necessary for disposal of the appeal, are as follows:

Appellant company is engaged in the business of manufacturing and marketing various varieties of glass. The accused/respondent purchased goods from the complainant company and in order to discharge that liability, he issued Ext. P1 cheque dated 25/09/2002 for an amount of Rs. 2,50,000/-. The complainant presented the cheque for collection through their banker. The cheque was returned with an endorsement that the account of the accused was freezed by the Income Tax Department. Complainant received an intimation regarding the dishonour of the cheque on 28/03/2003. Complainant thereafter caused to issue a lawyer notice on 24/04/2003 to the accused informing about the dishonour of the cheque and calling up him to pay off the liability. Accused after receiving the notice, sent a reply on 02/06/2003 raising untenable contentions. He failed to discharge the liability and hence the complaint was filed.

2. At the time of trial, two witnesses were examined on the side of the complainant and nine documents were marked. There was no defence evidence.

3. Heard the learned counsel for the appellant/complainant and the learned counsel for the respondent/accused. Learned Public Prosecutor was also heard.

4. Learned counsel for the appellant contended that the reasonings stated by the lower appellate court for dismissing the complaint and acquitting the accused are factually and legally incorrect. It is argued by the learned counsel for the appellant that the offence under Section 138 of the NI Act is attracted at the moment the cheque is dishonored. Further, in spite of the demand made, the accused failed to discharge the liability. Hence, the appellate court should have seen that whatever be the reason for non payment, the offence had already been committed. Per contra, the learned counsel for the accused submitted that the cheque was returned not due to any willful act on the part of the accused. It is seen from Ext. P2 memo issued by the payee bank that the account of the accused was freezed by the Income Tax Department. In the reply notice sent by the accused (Ext. P6), he mentioned that his business went into loss and tax arrears accumulated. Therefore, the Income Tax Department had initiated stringent action against him. Accused stated that the Income Tax Department had even freezed his bank accounts and the cheque issued by him to the complainant was bounced for that reason. So, there is no dispute regarding the fact that the cheque could not be encashed due to the instructions given by the Income Tax Department to the bank concerned. Learned counsel for the appellant contended that there is no provision in the Income Tax Act enabling the Income Tax Department to freeze the account as mentioned in Ext. P2 as well as in the testimony of PW 2. PW 2, the Branch Manager, Dhanalakshmi Bank, Thodupuzha Branch deposed that the cheque was returned in accordance with the order passed by the Income Tax Department for freezing the account of the accused. He further deposed that there was no sufficient funds to honour the cheque. Learned counsel for the appellant contended that non-availability of funds in the account of the appellant is one of the reasons for the dishonour of