Judgment : 1. The complainant is the appellant herein. The complaint proceeds as if the 2nd accused borrowed Rs. 1,00,000/- for his business purpose from the complainant and delivered a pronote in his favour thereby agreeing to repay the same with interest on 19.8.1999 and the 2nd accused has also towards the amount due under the pronote, delivered to the complainant bearer cheque dated 28.9.2000 drawn on Nedungadi Bank Limited for Rs. 1,31,020/- in favour of the II accused by the 1st accused thereby the complainant became holder in due course of the cheque and he presented the same for collection on 24.10.2000 and the cheque was returned dishonoured for want of sufficient funds and on receipt of the return memo, the complainant issued notice to the accused and the accused though duly received the same, not replied nor discharged the amount. The 2nd accused being the brother of the 1st accused has knowledge that there is no sufficient money in the bank and issued the cheque with dishonest intention to deceive the complainant and he also neither replied, nor discharged the amount, hence this complaint. 2. The complainant has in order to substantiate his case, examined his Power of Attorney and Manager of Nedungadi Bank and Assistant Manager of City Union Bank as P.W.1 to P.W.3 and has produced Special Power of Attorney executed in his name by other partners and promissory note executed by the 2nd accused, counter foil of cheque, ledger report, cheque in question, cheque return memo, copy of Legal Notice, acknowledgement, complainant Firm Registration Certificate, loan receipt signed by A1 and Nedungadi Bank Ledger Extract relating to Al‘s account as Exhibits P-1 to P-11. No oral and documentary evidence is adduced on the side of the accused. 3. The trial Court, on the basis of the available evidence and on the failure of the accused to adduce any rebuttable evidence, accepted the complainant case and found them guilty of the offence under Section 138 of Negotiable Instruments Act and convicted and sentenced them for the same. 3. The trial Court, on the basis of the available evidence and on the failure of the accused to adduce any rebuttable evidence, accepted the complainant case and found them guilty of the offence under Section 138 of Negotiable Instruments Act and convicted and sentenced them for the same. Aggrieved against the same, the accused 1 and 2 preferred appeal C.A. No. 44 of 2002, whereas the lower Appellate Court having found that no statutory notice is sent to the 1st accused who is the original drawer of the cheque, arrived at a conclusion that there is no cause of action for invoking Section 138 of Negotiable Instruments Act and hence acquitted both the accused of the charges, hence this appeal by the complainant. 4. The learned counsel for the appellant/complainant seriously questioned the correctness of finding of acquittal recorded by the trial Court mainly on the ground that the receipt of statutory notice is not denied by the accused. 5. Heard the submissions made by the learned counsel for the appellant. 6. Exhibit P-5 cheque in question dated 28.9.2000 is admittedly issued by the 1st accused V. Jothi in favour of the 2nd accused V. Sekar for Rs. 1,31,020/-. The complainant claims to be holder in due course on the strength of the endorsement on the reverse side of the cheque in question consisting of only the signature of the 2nd accused V. Sekar and that of one V. Boopathy who is one of the partners of the complainant firm. Except the signatures, there is no further endorsement to indicate passing of any consideration under the same and any date relating to date of transaction and date of endorsement. In the absence of those particulars, mere signature on the back side of the cheque cannot be treated as proper endorsement amounting to valid assignment of any right under the cheque in favour of the complainant to treat him as holder in due course so as to accept his locus standi to maintain the present complaint. 7. The above issue is dealt with directly in the following authorities viz. in Ashok Kumar v. K. Gunasekaran : (2005) 1 MLJ (Crl) 186 (ii) Mukesh Chandra Guptha v. Anu Kumar Jain 2006 (2) TNLR 693 (Mad). 7. The above issue is dealt with directly in the following authorities viz. in Ashok Kumar v. K. Gunasekaran : (2005) 1 MLJ (Crl) 186 (ii) Mukesh Chandra Guptha v. Anu Kumar Jain 2006 (2) TNLR 693 (Mad). In the cases above cited, the complaint is filed by the person claiming himself as holder in due course whereas endorsement found in the cheque was blank endorsement and the original lender was not examined as witness on the side of complainant and under such circumstances, our High Court is of the view that “holder in due course means any person who for consideration became the possessor of a promissory note” and when the consideration for passing of the cheque is not satisfactorily proved, the presumption that the other person is holder of cheque in due course cannot be drawn in favour of the complainant. The same view is also expressed by Andhra Pradesh High Court in the judgment in M. Ethirajulu v. Rangam Adinarayana and Others 2005 (1) Bankmann 452 . The Andhra Pradesh High Court expressed similar view on the basis of law laid down by our Apex Court in the judgment in U. Ponnappa Moothan Sons v. Catholic Syrian Bank Ltd., AIR 1991 SC 441 : (1991) 1 SCC 113 : that “the definition makes it clear that to be a ‘holder‘ in due course a person must be a holder for consideration and the instrument must have been transferred to him before it becomes overdue and he must be a transferee in good faith and another important condition is that the transferee namely the person who for consideration became the possessor of the cheque should not have any reason to believe that there was any defect in the title of transferor”. 8. In the present case also, there is no endorsement found in the document and the passing of consideration is also not duly proved by the complainant by summoning the second accused whose signature is found on the back side. 8. In the present case also, there is no endorsement found in the document and the passing of consideration is also not duly proved by the complainant by summoning the second accused whose signature is found on the back side. If that is so, the ratio laid down by our High Court and the Hon‘ble Supreme Court as followed by the Andhra Pradesh High Court is clearly applicable to the facts of the present case and by applying the same ratio, this Court is inclined to hold that the complainant failed to prove that he is the holder in due course and hence, has no locus standi to maintain the complaint. On this score alone, the complainant case is liable to be negatived. 9. Even otherwise, the lower appellate Court has not only on the ground of failure to give statutory notice, but also on facts, found the accused not guilty of the offence under Section 138 of Negotiable Instruments Act. The lower appellate Court has discussed in later part of its judgment that the complainant failed to prove nature of the transaction between the original drawer and drawee of the cheque on one hand and the drawee and the complainant herein on the other hand, The complaint is also bereft of particulars of the transaction between the accused 1 and 2 on one hand and between the 2nd accused and the complainant on the other hand. As a matter of fact, the complainant has, as P.W.1 in the witness box deposed that a sum of Rs. 1,00,000/- was borrowed on 19.8.1999 by the 2nd accused and he paid Rs. 5700/- on 22.9.1999 and for the balance amount, the cheque in question was issued by the 1st accused. Thus the complainant has come forward with different version in the witness box as if the money transaction is only between the defacto complainant and the 2nd accused and the cheque was issued by 2nd accused towards discharge of the same. Had it been true, the complainant could have obtained the cheque in his name and there is no reason or rhyme to obtain the cheque in the name of the 2nd accused and thereafter to assign it in the name of the complainant. Such theory remains to be unnatural. Had it been true, the complainant could have obtained the cheque in his name and there is no reason or rhyme to obtain the cheque in the name of the 2nd accused and thereafter to assign it in the name of the complainant. Such theory remains to be unnatural. Further the complainant firm as per Exhibit P-9 Registration Certificate being duly registered firm does not appear to be maintaining any other records relating to the transaction in question . Though Exhibit P-3 counter foil of the cheque for payment of Rs. 1,00,000/- to V. Sekar on 19.8.1999 is produced, the same is not acceptable in the absence of supportive register and pass book showing the encashment of the cheque from the complainant City Union Bank account. 10. Further, when the transaction and issuance of cheque were on the same date on 19.8.1999, the particulars of actual principle amount with interest at 2.70% due as on 28.9.2000 is not available. 11. Further, though Exhibit P-7 legal notice is addressed to both the respondents 1 and 2, Exhibit P-8 postal acknowledgement for receipt of Exhibit P-7 would only show that the statutory notice is issued to and received by the 2nd respondent/accused and no documentary evidence is adduced to prove issuance of due notice to the 1st accused who is the original drawer of the cheque. The lower appellate Court has in the absence of one such proof, rightly found that no statutory notice is issued to the 1st accused. It is note worthy to mention at this juncture that provision of law under Section 138 of Negotiable Instruments Act cannot be invoked unless the cheque has been presented for collection within its period of validity and the payee or holder in due course of cheque, makes a demand for the payment of money by giving notice in writing to the drawer of the cheque within 30 days of receipt of information by him from the bank regarding return of the cheque as unpaid and the drawer of the cheque fails to make payment to the bearer, payee or holder in due course, within 15 days of the receipt of the said notice. In the absence of one such statutory notice, the provisions of Sections 139 and 142 Sections 139 and 142 of Negotiable Instruments Act are not attracted and the provision of Section 138 of Negotiable Instruments Act cannot be invoked against the drawer of the cheque in question. The trial Court hence rightly found the accused not guilty and acquitted him. This Court is inclined to accept such view expressed by the trial Court. 12. Thus for the discussion held above, this Court is of the view that the complainant miserably failed to prove the nature of the transaction between the parties and valid assignment of the cheque in his favour, as such the question of treating him as holder in due course to have recourse to Section 138 of Negotiable Instruments Act does not arise herein. The complainant is not able to make out any valid and compelling reason to reverse the finding of acquittal recorded by the lower appellate Court and the same does not hence warranting any interference. 13. In the result, the appeal stands dismissed.