JUDGMENT: The appellant/complainant has come up with this appeal challenging the order of acquittal passed by the trial Court in C.C. No. 1605/99 dated 7-2-2002 thereby dismissing the complaint filed by him against the respondent for the offence punishable under Section 138 of Negotiable Instruments Act. 2. The trial Court dismissed the complaint filed by the appellant/complainant mainly on the ground that there was no legally recoverable debt under the cheque and that there is no proper service of statutory notice on the respondent. 3. Heard the arguments of learned counsel for both the parties and perused the records. 4.lt is argued by the learned counsel for the appellant that non-denial of the issuance of the cheque by the respondent conclusively establishes existence of debt and that the cheque has been issued in discharge of the same. He pointed out that when the notice was sent by RPAD/UCP by properly addressing, pre-paying posting stamps and cover containing necessary by document, even if it is received by any of the adult members of the family other than servant id held to be sufficient. In this case the wife of the respondent received the notice and this fact is corroborated by the testimony of DW.2 and has not been rebutted by the respondent. Mere handing over the share certificate with blank transfer from and without the agreement executed between the seller and the purchaser could not have construed to be sale of shares legally. Therefore the findings of the Magistrate are erroneous and hence the order of acquittal cannot be sustained. 5. On the other hand, the learned counsel for the respondent submitted that the dishonoured cheque in question was not in respect of a legally enforceable debt, that the cheque was presented beyond six months from the date of its drawl that the notice was not received by a person authorized by the respondent and that the alleged loan was advanced through cheque, but the appellant has not produced the bank pass book and therefore the Magistrate has rightly acquitted the respondent. 6. I n support of their respective contentions both sides have placed reliance on a number of decisions. 7. The complainant-appellant stated to have lent sum of Rs. 1,00,0001- to the accused on 16-6-1996 by way of two self cheques, one for Rs.78,000/- and another for Rs. 12,0001and a sum of Rs.10,0001- by cash. 6. I n support of their respective contentions both sides have placed reliance on a number of decisions. 7. The complainant-appellant stated to have lent sum of Rs. 1,00,0001- to the accused on 16-6-1996 by way of two self cheques, one for Rs.78,000/- and another for Rs. 12,0001and a sum of Rs.10,0001- by cash. In all RS.1,00,000/- on demand, the respondent issued a post dated cheque dated 23-9-1998 for RS.1 ,00,0001-.ln addition the respondent also gave 20,000 equity shares of M/s. Grant Lease Florex Ltd., Bangalore, of the face value of Rs. 101- each. The cheque when presented to the bank bounced for the reason of insufficient funds. The complainant issued a legal notice to the respondent through RPAD and UCP, which was served on one of the in-mates of the house of the accused. Since the respondent did not pay the cheque amount, the complainant filed CC NO.16051/99. 8. The respondent contested the said case mainly on the ground that the complainant purchased 20,000 shares of M/s. Grant Lease Florex Ltd. belongings toone Mukunda of the market value of Rs.2,20,000/- out of which the complainant had paid Rs.1,00,000/- to Mukunda on the same day by cash. The transaction took place in the presence of the respondent. At the time of transaction the complainant asked the respondent to give a blank cheque as guarantee and accordingly he issued a blank cheque and therefore the dishonoured cheque was not in relation to legally enforceable debt, as such the respondent cannot be held guilty under s.138 of the N.I. Act. 9. The trial court held that there is real dispute between the parties with regard to the issuance of cheque towards discharge of the existing debt, and if really the complainant had lent the amount through cheques, there was no impediment to the complainant to produce the bank pass book to show that he had advanced loan thorough cheques and the absence of documentary evidence, it is not safe to rely on the sole testimony of PW1. The trial Court also found that the notice was not served on the respondent. 10. The contention of the appellant is that when issuance of cheques is accepted, the presumption under s.139 of N.I. Act is existence of liability and the cheque issued is towards discharge of a legally recoverable debt. 11. The trial Court also found that the notice was not served on the respondent. 10. The contention of the appellant is that when issuance of cheques is accepted, the presumption under s.139 of N.I. Act is existence of liability and the cheque issued is towards discharge of a legally recoverable debt. 11. Section 138 of the N.I. Act says, 'where any cheque drawn by person on an account maintained by him with a banker for payment of any amount of money to another person from out of that account for the discharge, in whole or in part, of any debt or other liability, is returned by the bank unpaid, either because of the amount of money standing to the credit of that account is insufficient to honour the cheque orthat it exceeds the amount arranged to be paid from that account by an agreement made with that bank, such person shall be deemed to have committed an offence provided: (a) the cheque has been presented to the bank within a period of six months from the date on which it is drawn or within the period of its validity, whichever, is earlier. (b) the payee or the holder in due course of the cheque, as the case may be, makes a demand for the payment of the said amount of money by giving a notice in writing to the drawer of the cheque, within 15 days of the receipt of information by him from the bank regarding the return of the cheque as unpaid: and (c) the drawer of such cheque fails to make the payment of the said amount of money to the payee or as the case may be, to the holder in due course of the cheque within 15 days of the receipt of the said notice. "Debt or other liability" means a legally enforceable debt or other liability. In (2006)68 CC39: (2006(6)AIRKarR84) it is held that it is obligatory on the part of he Court to presume the liability of the drawer for the amount of the cheque in every case where the factual basis for such presumption is established. 12. In so far as the dishonoured cheque is concerned the stand taken by the respondent is that the cheque was not issued to wards discharge of any legally enforceable debt, but the blank signed cheque was issued as security. 12. In so far as the dishonoured cheque is concerned the stand taken by the respondent is that the cheque was not issued to wards discharge of any legally enforceable debt, but the blank signed cheque was issued as security. Relying on the decision reported in ICD Ltd, v. Beena Shabeer and another1 the learned counsel for the appellant submitted that when a cheque is issued as a security, complaint will lie under 8.138 of the N.I. Act , But in the decision reported in AI R 1992 Madras 346 it has been held: "Delivery of signed blank stamp paper to complete it - But party is not to entitled to party- Party receiving its authorise to recover said amount by filing suit, as by completing inchoate document he does not become holder in due course of that document." Therefore, the amount reflected in the cheque is not an enforceable legal liability. In ILR2006 Kar 3597 (sic) it is held that a cheque issued in respect of uncertain future liabilities would not attract prosecution under Section 138 of the N.I. Act. 13. With regard to the service of notice, the respondent contended that he was not served with the notice. The notice was issued both by registered post and also by certificate of posting. The appellant contended that the notice was served on the inmates of the house. The appellant relied upon the decision reported in ILR2005 Kar4486: (2005AIR-Kant HCR 2440). In that case the lower appellate Court had held that there was no pleading in the complaint to the effect that the notice was served and therefore the conviction order of the trial Court was reversed but the High Court upheld the conviction order of the trial Court holding that the accused had not placed any material on record to establish that the address to which the legal' notice was sent was not correct. The position is different in the present case. 14.ln the decision reported in AIR2005 SC 109 what is stated is that notice dispatched by sender by post with correct address on it can be deemed to be served on sendee/addressee unless he proves that it has not really served. 15. The position is different in the present case. 14.ln the decision reported in AIR2005 SC 109 what is stated is that notice dispatched by sender by post with correct address on it can be deemed to be served on sendee/addressee unless he proves that it has not really served. 15. The learned counsel for the respondent relied upon the decision reported in AI R 1988 Gujarat 5 wherein it is held that the notice sent under certificate of posting cannot be deemed have been served, observing that it is not unknown or unusual where these kinds of endorsements have been got made by the postman without proper care and sometimes deliberately false. In that case the notice sent by registered post was returned as refused. In another decision relied upon by the respondent reported in ILR 2005 Kar 409: ( AIR 2005 SC 109 ), the notice sent to the correct address of the drawer was returned with the endorsement that door of the house was locked. In 2006 (1) Supreme 47 : (2006 (2) AIR Kar R 611) the Supreme Court held that certificate of posting obtained by a sender is not comparable to a receipt for sending a communication by registered post-The case with which such certificates can be procured by affixing antedated seal with the connivance of any employee of the post office is a matter or concern. Here in the case on hand the position is different. In this case the contention of the appellant is that the notice was served on one of the inmates of the respondent's house, whereas the respondent contended that he had not authorised anyone to receive the notice and he has not been served with summons. As opined by the Apex Court it is easy to procure certificate of posting by affixing ante-dated seal with the connivance of postal employees. The idea behind sending a communication by registered post is that the communication should reach to the hands of the addressee himself. If the addressee was not present when the postman went to the correct address, he should have left a memo with the inmates of the house asking the addressee to receive the registered post from the post officer or to visit the address again on the next day. If the addressee was not present when the postman went to the correct address, he should have left a memo with the inmates of the house asking the addressee to receive the registered post from the post officer or to visit the address again on the next day. But, in the instant case the postman is stated to have handed over the notice to one of the inmates of the house. However, the respondent contends that he had not received the notice. The receipt of registered post is acknowledged by one Sujaya Setty. The respondent in his evidence disposed that the name of his wife is Kumari Hegde, Respondent is not cross examined on this evidence. The appellant has not confronted the signature of Sujaya Setty affixed in the acknowledgment to the respondent to admit or deny the signature as that of his wife. It is nor clear the signature found on the endorsement as "Sujaya Setty" was really affixed by the wife of the respondent herself. The suggestion put to D.W.I in the cross-examination is that one of the inmates of his house received the notice. In the cross-examination it is not suggested that his wife's name is Sujatha Shetty D.W.I has deposed that there is no one in his house by name Sujatha Shetty. Before the signature or name in question found in the endorsement there is a prefix "For". That mans the signature is put for and on behalf of Sujaya Shetty. It appears to have been written as 'Sujatha' and not 'Sujaya'. Therefore, I hold that service of notice is not satisfactorily proved. 16. The main question to be considered is, whether the cheque issued by the respondent was for the discharge, in whole or in part, of any debtor other liability. The earned counsel for the appellant relied on the decision in case of K.N.Beena v. Muniyappan2, reported in wherein it is held: "In view of the provisions contained in Ss.118 and 139, the Court has to presume that the cheque had been issued for discharging a debt or liability However, the said presumption could be rebutted by the accused by proving the contrary - Mere denial or rebuttal by accused to the reply to the legal notice sent by the complainant is not enough Accused had to prove by cogent evidence that there was no debt or liability." 17. The complaint discloses that the accused -respondent had been facing acute financial problems and he was badly in need of funds to discharge the loans he had made with private parties and hence the appellant paid Rs. 1,00,000/- by issuing two cheques. The appellant has stated that both the cheques are in the custody of Canara Bank, Yediyur Branch, and he reserved his right to summon the cheques at the time of trial. Thus, there was no impediment to the appellant to summon the cheques or produce his statement of bank account. P.W.1 in his evidence does not say anything about the shares except deposing about collateral security. Therefore, the Court below has rightly concluded that it is not safe to conclude that the appellant had advanced loan to the accused-respondent, relying on the evidence of P.W.1 alone. 18. According to the complaint, the appellant advanced the loan on the condition that he should give collateral security and post dated cheque putting the probable date on the cheque. The decisions reported in 1993 Cri Ls 2359,111995 BC 506 Bombay and II (1992) BC 218 on which reliance is placed by the Court below says that issue of postdated cheques has to be treated as drawn on date it is delivered and not on the date it bears. Further, according to 8.138 of the N.I.A of the cheque has to be presented to the bank within a period of six months form the date on which it is drawn. If there was any agreement to repay the amount after two years with interest at 10%, and if the cheque was issued after two years, the cheque amount would have been more than one lakh. More over, the complaint reveals that the loan was advanced on condition that the respondent-accused should give a post dated cheque. That means, the accused had issued the cheque on 16-6-1996.lnthatview of the matter, it is clear that the cheque issued by the respondent to appellant is only as a security and not for discharge of any existing debt, as on the date of issuance of the said cheque. 19. So far as the presumption as to issuance of the cheque for consideration and in discharge of debt, the respondent-accused need not disprove the appellant's case in its entirety. 19. So far as the presumption as to issuance of the cheque for consideration and in discharge of debt, the respondent-accused need not disprove the appellant's case in its entirety. He can discharge his burden on the basis of preponderance of probabilities through direct or circumstantial evidence, for which he can also rely on the evidence adduced by the complainant. The respondent in his evidence has stated that he had not taken any loan from the appellant to tide over his financial difficulties by pledging the shares; that the amount shown in Ex. P.2 is part of the sale consideration of shares and as the price of the shares crashed subsequently, the appellant was unwilling either to transfer them or sell them, and therefore filling up the blank cheque after two years he has filed this case. There is evidence on record to point out handing over of share certificates. Thus, the accused-respondent has discharged the initial onus of proof. Considering the case on factual basis, ! find that the appellant has not satisfactorily discharged the burden of proof. In this view of the matter, I need not find it necessary to go into the bye-laws relating to the dealings in the stock exchange. Non-production of the pass book by appellant in relation to the amount lent by him to the respondent through cheques, is fatal to the case of the complainant/appellant. As such, the appellant has failed to discharge his burden by producing documentary evidence before the court below. Hence, viewed from any angle, I do not find any good reasons to interfere with the order of acquittal passed by the court below. 20. Accordingly, the appeal is dismissed.