JUDGMENT : B. Siva Sankara Rao, J. The unsuccessful complainant in C.C. No.30 of 1998 preferred this appeal under Section 255 (1) Cr.P.C with leave under Section 378 (4) Cr.P.C aggrieved by the Judgment dated 09.01.2002 adjudged by the learned Judicial Magistrate of the First Class, Yellandu. 2. The complainant filed the private complaint case under Section 200 Cr.P.C for the offence punishable under Section 138 of the Negotiable Instruments Act, 1881 (in short, `the Act') against the accused based on a dishonoured cheque dated 16.09.1997 for an amount of L 50,000/-. The cheque said to have been drawn by the accused in his favour in lieu of the promissory note executed on 01.08.1994 undertaking to pay a sum of L 35,000/- with interest at 24% p.a. thereon. From the averments of the complaint, when said cheque presented through their banker the same was returned dishonoured on the ground of "the account was closed". Ex.P-2 is the bank voucher and Ex.P-3 and P-4 are memos. On the strength of the same the complainant issued Ex.P-5 legal notice dated 28.10.1997 and same was returned which was disclosed by Ex.P-7. The case was taken on file and cognizance against the accused for the offence under Section 138 of the Act. On appearance of the accused and after pleaded not guilty in examination under Section 251 Cr.P.C, trial was conducted as a summons case. From said evidence of complainant as P.W-1 coupled with the officer of the Bank as P.W-2 in proof of the dishonoured cheque and P.W-3 is the Assistant Director, Forensic Science Laboratory with reference to Exs.P-8 to P-13 requisition, opinion along with reasons, photo chart and negatives regarding the signature opining that of the accused, the case was ended in acquittal on the finding of guilt not proved holding that the account was closed much earlier to the issuing of cheque and hence, the accused cannot be prosecuted though the cheque was dishonoured. 3. 3. The learned counsel for the appellant contended that the learned Magistrate committed grave error in acquitting the accused instead of finding guilty for the offence made out from the cheque issued, for the subsisting debt, was dishonoured, even notice issued cause managed from deemed service, the offence made out and cause of action subsists within the meaning of Section 142 read with 138 of the Act of an offence shall be deemed to have been committed with respect to presumption under Section 139 and 118 (a) of the Act and to set aside the finding of the learned Magistrate in acquittal and to convict the accused. 4. The 1st respondent-accused submits that there is no existing promissory note for the alleged debt, filed and proved, and there is no subsisting debt as the alleged debt barred by time for enforceability legally beyond three years. He further contended that, even for argument's sake, from the signature of the cheque of the accused taken from the opinion of the expert, there is no presumption regarding the cheque was issued for a legally enforceable debt muchless to draw the presumption under Section 118 (a) of the Act and once the trial Court having fresh in mind from the evidence recorded came to the reasoned conclusion merely because another view also possible, for this Court there is nothing to interfere while sitting in the appeal hence to dismiss the appeal. 5. Now the points that arise for consideration in the appeal are: i) Whether the accused has issued the cheque Ex.P-1 in favour of the complainant for any debt (legally enforceable) and if so, whether the trial Court went wrong in acquitting the accused? ii) To what result? POINT No.i: 6. Before coming to the factual matrix, it is apt to refer the object and intention of the penal provisions of the Chapter XVII (Sections 138 - 147), in particular, Sections 138 & 139 (besides civil remedy), are to prevent issuing of cheques in playful manner or with dishonest intention or with no mind to honour or without sufficient funds in the account maintained by the drawer in Bank and induce the Payee/Holder or Holder in due course to act upon it. The remedy available in a Civil Court is a long drawn matter and an unscrupulous drawer normally takes various pleas to defeat the genuine claim of the payee. The remedy available in a Civil Court is a long drawn matter and an unscrupulous drawer normally takes various pleas to defeat the genuine claim of the payee. Since a cheque that is dishonoured may cause uncountable loss, injury or inconvenience to the Payee due to the latter's unexpected disappointment, these provisions incorporated are in order to provide a speedy remedy to avoid inconvenience and injury to the Payee and further to encourage the culture of use of cheques and enhancing credibility of the instruments as a trustworthy substitute for cash payment and to inculcate faith in the efficacy of Banking operations - Goa Plast (P).Ltd. v. Chico UDS, AIR 2003 SC 2035 (3) SCC 232 : CrLJ 1723 (1) ALT (Crl) 321 (1)ALD (Crl) 638 SC, See also 2004 (2) SCC-235. 6 (a) To fulfil the objective, the Legislature while amending the Act has made the following procedure: In the opening words of the Section 138 it is stated: "Where any cheque drawn by a 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,---------, such person shall be deemed to have committed an offence and shall, without prejudice to any other provision of this Act (See Section 143), be punished ----. Provided, nothing contained in this section shall apply unless,- (a), (b); and (c) Explanation--- (supra)." " (i) Under Section 138 a deeming offence is created by fiction of law. (ii) An explanation is provided to Section 138 to define the words "debt or other liability" to mean a legally enforceable debt or other liability." (iii) In Section 139, a presumption is ingrained that the holder of the cheque received it in discharge of debt or other liability. (iv) Disallowing a defence in Section 140 that drawer has no reason to believe that cheque would be dishonoured. (v) As per Section 146 (new section) the production of the Bank's slip or Memo with official mark denoting that the cheque has been dishonoured is prima facie evidence for the Court to presume the fact of dishonour of such cheque unless such fact is disproved by the accused. (v) As per Section 146 (new section) the production of the Bank's slip or Memo with official mark denoting that the cheque has been dishonoured is prima facie evidence for the Court to presume the fact of dishonour of such cheque unless such fact is disproved by the accused. Further the provision for issuing notice within thirty days under section 138 after dishonour is to afford an opportunity to the Drawer of the cheque to rectify his mistakes or negligence or in action and to pay the amount within fifteen days of receipt of notice, failing which the drawer is liable for prosecution and penal consequences. Reasonability of cause for non-payment is not at all a deciding factor. Mensrea is irrelevant. It is a strict liability incorporated in public interest. 6 (b) Availability of alternative remedy is no bar to the prosecution. The provisions incorporated under Sections 30 and 138 of the Act clearly explain the distinction between civil and criminal liability. In the wording of Section 138 of the N.I. Act, where any cheque, the word any suggests that for whatever reason if a cheque is drawn on an account maintained by him with a Banker in favour of another person for the discharge of any debt or other liability, the liability cannot be avoided in the event of the cheque stands returned by the Banker unpaid. In order to constitute an offence under Section 138 of the N.I. Act, the Apex Court, in Jugesh Sehgal v. Shamsher Singh Gogi, (2009) 14 SCC 683 , noted the following ingredients which are required to be fulfilled: " (i) a person must have drawn a cheque on an account maintained by him in a bank for payment of a certain amount of money to another person from out of that account; (ii) the cheque should have been issued for the discharge, in whole or in part, of any debt or other liability; (iii) that 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; (iv) that cheque is returned by the bank unpaid, either because of the amount of money standing to the credit of the account is insufficient to honour the cheque or that it exceeds the amount arranged to be paid from that account by an agreement made with the bank; (v) the payee or the holder in due course of the cheque 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 (30) days of the receipt of information by him from the bank regarding the return of the cheque as unpaid; (vi) the drawer of such cheque fails to make payment of the said amount of money to the payee or the holder in due course of the cheque within 15 days of the receipt of the said notice. Being cumulative, it is only when all the aforementioned ingredients are satisfied that the person who had drawn the cheque can be deemed to have committed an offence under Section 138 of the Act." In Trilok Chand Jain v. State of Delhi, (1975) 4 SCC 761 ) it was held necessary for the appellant at least to show on the basis of acceptable evidence either that his explanation in the written statement was so probable that a prudent man ought to accept it or to establish that the effect of the material brought on record, in its totality, rendered the existence of the fact presumed, improbable. The appellant has done neither. In the absence of any such proof the presumption under Sections 138 and 139 must prevail. The appellant has done neither. In the absence of any such proof the presumption under Sections 138 and 139 must prevail. The same was referred in Hiten P. Dalal v. Bratindranath Banerjee. 7. From the above propositions, coming to the facts regarding sufficiency of notice, when the notice was returned as unclaimed since issued by registered post, the presumption under Section 27 of General Clauses Act can be drawn. Further, it is not the case that address of the accused is wrong to rebut said presumption muchless by showing he was out of station at any particular place in the relevant point of time and for not making arrangement to sign the notice as also laid down by the Apex Court in Bhaskaran v. Shankaran, 1999 SC 3762 and D. Vinod v. N. Sivappa, (2006)6 SCC 456 . Here as held by the Apex Court in Narayan Menon v. State of Kerala, (2006)3 SCC 30, it is only once the complainant proved that the cheque was drawn by the accused on the account maintained by him with a banker for payment of any amount in favour of the complainant from out of that account for its discharge and the same when presented returned by the Bank unpaid for insufficiency of funds or exceeds arrangement, such person shall be deemed to have been committed an offence. To apply said legal fiction, the complainant has to establish that the accused issued the cheque drawn in his favour from his account voluntarily. It is for the discharge of the debt. What Section 139 of the Act speaks of the presumption against the accused to rebut is the holder of a cheque received the cheque of the nature referred in Section 138 of the Act for discharge of debt. It is once proved, the complainant as holder of cheque within the meaning of Section 8 and as payee under Section 7, the presumption under Section 139 of the Act arises. There is nothing from the evidence to say the accused issued the cheque, as the case of the accused is total denial. No doubt, the expert evidence with the evidence of P.W-3 speaks the signature of the accused on the cheque is tallied with reference to other specimen signatures and admitted from comparison. Undisputedly the expert opinion regarding hand writing is opinion evidence and not a conclusive proof like thumb impression. No doubt, the expert evidence with the evidence of P.W-3 speaks the signature of the accused on the cheque is tallied with reference to other specimen signatures and admitted from comparison. Undisputedly the expert opinion regarding hand writing is opinion evidence and not a conclusive proof like thumb impression. No doubt that opinion coupled with the evidence of P.W-1 shows accused issued the cheque for the debt due. To say the burden is on the accused shifted from said evidence to rebut under what circumstances the cheque with his signature in the custody of the complainant; if not given by him the non-issuance of a reply to the notice, the deemed service since unclaimed, draws inference against the accused regarding dishonour of the cheque and otherwise the accused could have replied if got any defence, though the non giving of any reply no way amounts to admission, but for, to draw such inference. Here the other important aspect to consider within the meaning of the explanation to Section 138 of the Act is whether the debt is due from the accused and legally enforceable that is required to be proved by the complainant. 8. The very case of the complainant is that it is a pronote debt dated 01.08.1994 for an amount of L 35,000/- with interest for which the accused issued Ex.P-1 cheque for L 50,000/- on 16.09.1997. It is not even the case either in the complaint or in his statement on oath in proof of the complaint to take cognizance in the proceedings under Section 200 Cr.P.C that there exists any acknowledgement of the alleged pronote debt in the meanwhile. The so called pronote if at all executed and not discharged, it was not filed though it is one of the material documents with no expression for its withholding to draw adverse inference against the complainant, as held by the Apex Court in Narayan Menon (supra) from non production of account books and withholding of material documents in proof of the claim. Apart from it, from the very showing as per the complaint, the pronote debt even taken from the very claim dated 01.08.1994 is barred by time by 02.08.1997 and the cheque said to have been obtained if not issued from the controversy in this regard supra, was dated 16.09.1997 which is beyond the prescribed period of limitation for its enforceability from the said pronote debt which is payable as and when demanded to commence the limitation from date of pronote. Once the pronote debt is barred by time and there is nothing to say within the meaning of Section 25 of the Indian Contract Act of the cheque issued is by acknowledgement of the time barred debt to enforce the liability to bring within the meaning of legal enforceability as per the explanation of Section 138 of the Act, there is no legally enforceable debt. Once there is no legally enforceable debt from the very showing by the complainant, without any further proof by the accused, no offence could be made out under Section 138 of the Act against the accused, without going into other merits of the matter. Same was also the conclusion by our High Court in A. Yesubabu v. D. Appalaswamy, 2004 (1) ALT (crl.)39. Accordingly point No.1 is answered. POINT -2: 9. In the result, the appeal is dismissed. Bail bonds executed in force of the accused, if any, shall stand cancelled.