The burden of proof shifts to the complainant once the presumption under Section 139 of the NI Act is rebutted by the accused.

JUDGMENT

The appellant was the complainant in S.T.No.207 of 2013 on the files of the Judicial First Class Magistrate Court-II, North Paravur. He is aggrieved by the judgment of acquittal dated 16.10.2014 in a proceeding under Section 138 of the Negotiable Instruments Act , 1881 (for short, 'NI Act'). The parties are referred to in this judgement, as they were in the trial court.

2. The complainant alleged that the accused had borrowed an amount of Rs.20,00,000/- from him and issued a cheque dated 04.11.2007 bearing No.000144 drawn on the Union Bank of India, Thottilpalam Branch for the amount borrowed, which, when presented for encashment, returned dishonoured on 11.04.2008, with the memo ‘insufficiency of funds’. Though a statutory notice was issued, it was returned unclaimed stating that the addressee had ‘left India’ and thereafter since no payment was made, the complaint was instituted.

3. In order to prove the complainant's case, he examined PW1 to PW4 and marked Ext.P1 to P6. The defence examined DW1 and DW2 and marked Ext.D1 to Ext.D3. On a detailed consideration of the evidence adduced in the case, the trial court came to the conclusion that the accused was not guilty of the offences alleged and hence acquitted him.

4. Sri. Dinesh R.Shenoy, the learned counsel for the complainant submitted that the impugned judgment of acquittal is perverse and hence the acquittal ought to be set aside. It was also submitted that the trial court came to the conclusion that the accused had no knowledge regarding the dishonour of Ext.P1 cheque as the notice issued to him returned unclaimed which is a perverse finding since the notice was issued in the proper address and therefore the statutory requirement of giving notice is satisfied.

5. Sri. R Sudhish, the learned counsel for the first respondent submitted that the impugned judgment does not warrant any interference. According to the learned Counsel, if in case this Court is not convinced of the reasoning of the trial court in favour of the accused, regarding the service of notice, still, the acquittal ought not to be interfered with, as the evidence on the plea of alibi itself proved that the cheque was not issued in discharge of a debt or liability. In support of the plea of alibi, the learned Counsel brought to the notice of the Court that on the date the cheque was allegedly issued, evidence had been adduced to prove that the accused was not even in the country, as evident from Ext.D1 and Ext.D1(b). It was submitted that, despite the above evidence, the trial court wrongly found that the cheque was issued in discharge of a legally enforceable debt, which finding is erroneous and ought to be interfered with.

6. I have considered the rival submissions and have also perused the trial court records.

7. On an appreciation of the discussions in the impugned judgment, it is noticed that the trial court came to the conclusion that Ext.D1 passport was not a fake document, but yet relied upon the evidence of PW3 and PW4 to arrive at a conclusion that the the execution of cheque cannot be said to be disproved especially in the absence of anything to disbelieve the oral testimony of PW1 and also the admission of signature on the cheque. Despite the above finding, the accused was acquitted for the reason that the notice issued was returned unserved with the endorsement 'addressee left India’.

8. When an addressee has left India, or has changed his address, the sender (drawee of the cheque in the instant case), need only send the notice to the last known perman