The burden of proof in cases under Section 138 r/w 142 of the Negotiable Instruments Act lies with the complainant to establish the issuance of the cheque and the authenticity of the signature, and the failure to serve a statutory notice does not automatically lead to an adverse inference against the accused.

This appeal arises out of the judgment of the learned Judicial Magistrate No.III, Erode acquitting the respondent herein, who stood the trial for an offence punishable under Section 138 r/w 142 of the Negotiable Instruments Act in C.C. No. 177/2000. The said case had been taken on file by the Trial Court based on a private complaint lodged by the appellant/complainant containing the following allegations:

"On 20.3.2000, the respondent herein/accused borrowed a sum of Rs.2,50,000/- from the appellant/complainant for his urgent expenses and for the discharge of the said debt, the respondent/accused issued a cheque dated 20.4.2000 drawn on Canara Bank, Park Road, Erode for a sum of Rs.2,50,000/-. He also made a promise to pay interest @ 24% per annum. When the cheque was presented for collection on 24. 2000, it was returned with the Bankers note "funds insufficient". Pursuant to the bouncing of the cheque, a lawyers notice was issued to the respondent/accused on 5. 2000. But, the registered cover containing the said notice was returned as "not claimed" on 15. 2000.

As the respondent/accused evaded service of notice, failed to issue any reply and did not make any payment for the amount covered under the bounced cheque, the complaint was lodged under Section 200 Cr.P.C. against the respondent/accused for the above said offence."

2. The complaint was taken on file as C.C. No. 177/2000 and process was issued. On receipt of process, the respondent/accused entered appearance and pleaded not guilty. In order to prove the case, the appellant/complainant, besides examining himself as P.W.1, examined the Manager of the Bank as P.W.2 and produced 7 documents as Exs-P1 to P7. After completion of evidence on the side of the appellant/complainant, the respondent/accused was questioned by the Trial Court under Section 313(1)(b) Cr.P.C. with regard to the incriminating materials found in the evidence adduced on the side of the appellant/complainant. The respondent/accused denied them to be false. It was his further submission during his examination under Section 313 Cr.P.C that he did not borrow any amount from the appellant/complainant; that the signature found in the cheque produced on the side of the appellant/complainant was not his and that the case had been foisted against him. No witness was examined and no document was marked on the side of the respondent/accused.

3. After hearing the arguments advanced on either side, the learned Judicial Magistrate No.III, Erode came to the conclusion that the charge under Section 138 r/w 142 of the Negotiable Instruments Act was not proved beyond reasonable doubt. In the light of the admission made by P.W.2 that the signature found in the specimen form available with the Bank and the one found in the cheque differ from each other, the learned Trial Judge held that the appellant/complainant failed to prove that the cheque was issued by the respondent/accused. Based on the above said finding, the learned Judicial Magistrate No.III, Erode, dismissed the complaint by his judgment dated 5. 2001 and acquitted the accused. Hence, the appellant/complainant has approached this Court by way of the present appeal.

4. Mr.M.M. Sundresh, learned counsel advancing arguments on behalf of the appellant, contended that the appellant/complainant had proved all the ingredients necessary for proving the charge under Section 138 r/w 142 of the Negotiable Instruments Act and that the mere fact that an answer favourable to the accused, to the effect that the signature of the respondent/accused found in the specimen form available with the Bank differed from the one found in the cheque, was elicited from Bank Manager (P.W.2) was not enough to come to the conclusion that the commission of offence under Section 138 r/w 142 of the Negotiable Instruments Act was proved beyond reasonable doubt. The learned counsel also contended that the very fact that the respondent/accused failed to issue any reply should have been