Important points:
The accused did not dispute his signature in the cheque except that it was issued as blank to one Monichan in Alappuzha and it later came to the unauthorised possession of PW1 by way of collusion between parties. The defence case was not probabilised in any convincing manner. No rebuttal evidence was also adduced by the accused. The presumption of consideration under Section 139 of the NI Act attaching to Ext.P1 cheque stands unrebutted.

JUDGMENT :

1. The order of acquittal of accused passed by the Additional Sessions Judge, Kottayam in Crl.A.No.540/2003 reversing the order of conviction and sentence of the trial court in C.C. No.818/1999, a private complaint filed under Section 138 of the Negotiable Instruments Act, 1881 (for short, 'the NI Act'), is challenged by the complainant in this appeal filed under Section 378(4) of the Code of Criminal Procedure, 1973(for short' the CrPC').

2. The appellant claimed before the trial court that the accused issued Ext.P1 cheque post-dated to 27.03.1999 for an amount of Rs.70,000/-in the name of the appellant drawn on Syndicate Bank, Changanacherry Branch, in discharge of a legally enforceable debt incurred by him. The cheque on presentment was dishonoured by the drawee bank with an endorsement 'account closed'. Thereupon, the appellant sent Ext.P4 demand notice by registered post in the correct address of the accused which returned as 'unclaimed'. Thereafter, the complainant lodged the complaint under Section 138 of the NI Act, claiming it to have been filed in compliance with all statutory formalities.

3. The accused, who denied the charge against him in the trial court, opposed the prosecution under two grounds; (a) the demand notice sent by registered post was not in his correct address. He was at the time of alleged service of Ext.P4 demand notice, employed and residing in Saihat Damman, Saudi Arabia which is also the address furnished with the drawee bank and mentioned in Ext.P7, NRI account maintained by him with the drawee bank and (b) he did not have any monetary transaction nor did he incur any such liability with the appellant, except that the appellant introduced to him one Monichan in Alappuzha, from whom he received an amount of Rs.15,000/-as loan, for which, a blank cheque was issued. Strangely enough, it was later converted into Ext.P1 cheque by Monichan colluding with appellant. Since Ext.P1 was subjected to material alteration, it is void and prosecution case is, therefore, illegal.

4. PWs.1 to 3 are the witnesses, including the appellant who were examined on his side before the trial court and Exts.P1 to P8 are the documents adduced in evidence by him. No defence evidence was adduced by the accused, except his cross-examining the witnesses seeking to bring out facts in support of defence plea.

5. PW2, the Manager of drawee bank proved that on the date when the account was closed, the outstanding balance at the credit of the accused was far below the cheque amount which was insufficient to encash the cheque. This is not a fact disputed by the accused also. The trial court, therefore, rightly found that notwithstanding the ground of dishonour being indicated as 'account closed', offence punishable under Section 138 of the NI Act was attracted in the case.

6. Accused sought to rely on the evidence given by PW3, the Post Mistress that she had made an endorsement on Ext.P4 postal cover to the effect that addressee had already left India. She explained that the said endorsement was made relying on the information given to her by the mother of the accused available at the house, though it was later struck off and replaced by another endorsement made by her as 'unclaimed' presumably acting under the instruction given by a Clerk in the post office. PW1, the appellant had a contention before the trial court that the accused willfully evaded service of notice with ulterior motive.

7. The trial court after considering the evidence on record accepted the contention of the appellant and held that demand notice was sent in the correct address of the accused and deemed service of notice on the addressee must be presumed having regard to the presumption under Section 27 of the General Clauses Act, 1897 (for short, 'the GC Act'). It also accepted the testimony of the appellant regarding the loan transaction with the accused which led to issue of Ext.P1 cheque, as convincing. Appellant's evidence that issue of cheque was in dis