JUDGMENT :

The appellant is the complainant. Challenge in the appeal is directed against the acquittal of the first respondent/accused of the offence punishable under Section 138 of the Negotiable Instruments Act, 1881 (hereinafter referred to as 'the Act').

2. The case of the complainant, as stated in the complaint, is as follows: The accused issued a cheque dated 20.04.2004 for Rs.2,00,000/-in favour of the complainant towards discharge of a legally enforceable debt. The complainant presented the cheque in the bank. The cheque was dishonoured for the reason that payment was stopped. The complainant received intimation regarding the dishonour of the cheque on 09.09.2004. He sent a lawyer notice to the accused on 13.09.2004 demanding payment of the amount of the cheque. The accused received the notice. He did not pay the amount.

3. During the trial of the case, the complainant was examined as PW1 and Exts.P1 to P6 documents were marked on his side. DW1 was examined and Exts.D1 to D5 documents were marked on the side of the accused.

4. The trial court found that there are suspicious circumstances regarding the execution of the cheque by the accused and issuing it by him to the complainant in discharge of a debt. Therefore, the trial court found the accused not guilty of the offence punishable under Section 138 of the Act and acquitted him.

5. Heard learned counsel for the appellant and also the first respondent and perused the records.

6. Ext.P1 is the cheque dated 20.04.2004 for Rs.2,00,000/-alleged to have been executed by the accused and delivered by him to the complainant. The cheque is seen signed by the proprietor of “Nice Agencies”. Ext.P2 memorandum dated 08.9.2004 issued from the bank shows that the cheque was returned unpaid for the reason that payment was stopped by drawer. Ext.P3 memorandum issued from the bank would show that intimation was given to the complainant from his bank regarding the dishonour of the cheque on 09.09.2004. Ext.P4 is the copy of the lawyer notice dated 13.09.2004 sent by the complainant to the accused demanding payment of the amount of the cheque. The complainant had sent the notice to the accused in the residential as well as business address. Ext.P5 postal acknowledgment card shows that the accused had received the notice, which was sent to his residential address, on 14.09.2004. The complaint was filed on 07.10.2004.

7. Ext.D1 is the copy of the reply notice dated 28.09.2004 sent by the accused to the complainant. The plea raised by the accused in Ext.D1 reply notice as well as the statement filed by him under Section 313 Cr.P.C can be summarised as follows: He did not owe any debt or liability to the complainant. He is the proprietor of a furniture shop. He had dealings with the business concern of the complainant by name “M/s.Royal Associates” at Angamaly. The business transactions with the firm of the complainant were stopped by him by November, 2003. Even thereafter, the complainant and his partner were not prepared to settle the accounts of business on mutual discussions. On 20.01.2004, the complainant and his partner and three other persons trespassed into his shop and forcibly took his cheque book and threatened and compelled him to sign two cheque leaves. Unable to resist them, he signed the cheque leaves. The complainant has misused one of the cheque leaves and filed the complaint. The partner of the complainant has filed another case against him by misusing the other cheque leaf.

8. When examined as PW1, the complainant gave evidence in examination-in-chief (proof affidavit) that the accused issued Ext.P1 cheque dated 20.04.2004 to him for discharging the legally enforceable debt due to him.

9. PW1 has stated on cross-examination that the accused signed Ext.P1 cheque in his presence and gave it to him. In reexamination, he stated that he was not aware whether the accused had already made the entries in the cheque and kept it with him. But, PW1 reiterated that the accused signed the chequ