Judgment :- 1. The appellant is the private complainant in S.T.C.No.2016 of 2003 on the file of the Court of Judicial Magistrate No.1, Nagercoil, Kanyakumari District and aggrieved by the order of acquittal dated 21.04.2007 made in the said case, has filed this appeal. 2. The appellant herein has filed the above said complaint against the respondent for the commission of the offence under Section 138 r/w 142 of Negotiable Instruments Act and in the complaint, it is averred by him that the respondent/accused is a native of a Village nearby to his place of residence and on account of the said acquaintance, he requested for a loan of Rs.2,00,000/- and acceding to the said request, the appellant/complainant has paid a sum of Rs.2,00,000/- on 05.06.2003 and for repayment of the said loan, the respondent/accused has issued a post dated cheque dated 05.07.2003 drawn on Tamil Nadu Mercantile Bank Limited, Nagercoil Branch (Ex.P.1). The appellant/complainant presented the said cheque for collection on 05.07.2003 with the bank, namely State Bank of Travancore at Asaripallam and it was dishonoured for the reason "funds insufficient" and an intimation was sent by the bank, vide Ex.P.2, dated 26.07.2003. The appellant/complainant has issued a statutory notice on 05.08.2003 (Ex.P.4) and it was returned with an endorsement "refused". The appellant/complainant alleged that in spite of receipt of statutory notice, the respondent/accused did not pay the amount due and payable under the said cheque and, therefore, filed the said complaint, seeking his prosecution for the commission of the offence under Section 138 r/w 142 of Negotiable Instruments Act. 3. The respondent/accused, on receipt of the summons, has appeared before the Trial Court and pleaded not guilty to the commission of the said offence. 4. During the course of trial, the appellant/complainant examined himself as P.W.1 and marked exhibits Exs.P.1 to P.4. 5. The respondent/accused was questioned under Section 313(1)(b) of Criminal Procedure Code, 1973, with regard to the incriminating circumstances made out against him in the evidence tendered by the appellant/complainant and he denied it as false. 6. On behalf of the respondent/accused, Sakthivel Murugan was examined as D.W.1. 7. 5. The respondent/accused was questioned under Section 313(1)(b) of Criminal Procedure Code, 1973, with regard to the incriminating circumstances made out against him in the evidence tendered by the appellant/complainant and he denied it as false. 6. On behalf of the respondent/accused, Sakthivel Murugan was examined as D.W.1. 7. The Trial Court, on a consideration of oral and documentary evidences, has found that the respondent/accused is not guilty under Section 138 r/w 142 of Negotiable Instruments Act and acquitted him under Section 255(1) of Criminal Procedure Code, vide impugned judgment dated 21.04.2007 and aggrieved by the same, the present appeal is filed by the complainant. 8. Mr.S.Xavier Rajini, learned counsel appearing for the appellant/private complainant has drawn the attention of this Court to the statutory notice marked as Ex.P.4 and would contend that the said notice has been addressed to the respondent/accused with the following address "V.Suyambulingam, Proprietor, Jai Hind Traders, 10/69A, Erambukadu, Anandanadar Kudiyiruppu Post, Kanyakumari District" and it was returned with an endorsement "refused" and in the complaint, the address for service on the respondent/accused has been stated as "residing at Tharavilai, Neendakarai 'A' Village, Erambukadu Post, Kanyakumari District (Rajakkamangalam Police Limit)" and the summons were served and thereafter, he entered appearance and contested the matter. It is his submission that once a statutory notice returned with an endorsement "refused", it deemed to be proper service and the lower Court has erroneously given the finding that the signature of the respondent/accused found in the summons issued by the Court, the signature found in the acknowledgment card and the signature found in the impugned cheque, differ with each other and consequently, acquitted the respondent/accused, which is per se unsustainable in law and on facts. The attention of this Court was also invited to the testimonies of P.W.1 as well as D.W.1 by the learned counsel appearing for the appellant/complainant. 9. The attention of this Court was also invited to the testimonies of P.W.1 as well as D.W.1 by the learned counsel appearing for the appellant/complainant. 9. Per contra, the learned counsel appearing for the respondent/accused would submit that admittedly the statutory notice has not been sent to the correct address and though it was returned with an endorsement "refused", the fact remain that in the complaint, an altogether different address has been given and the Trial Court, on a proper appreciation of oral and documentary evidences, has rightly reached the conclusion that the private complaint deserves dismissal and accordingly, dismissed the complaint and acquitted the respondent/accused under Section 255(1) of Criminal Procedure Code and prays for dismissal of this appeal. 10. This Court has carefully considered the rival submissions and also perused the materials placed before it. 11. In the cross-examination of P.W.1/complainant, a suggestion has been put on behalf of the respondent/accused that since the statutory notice has not been issued in accordance with law, the respondent/accused was prevented from sending a reply. It is pertinent to point out, at this juncture, that on behalf of the respondent/accused, no defence has been put forth that on account of the address being given differently in the statutory notice, he has not received it and consequently, could not send a reply in response to the said notice. Admittedly, the respondent/accused did not enter into the witness box to probabilise his defence that the statutory notice was not served on him, but a wrong endorsement has been made stating that "refused". The concerned officials of the Postal Department have not been examined to substantiate his defence that in spite of the endorsement, on the statutory notice "refused", he has refused to receive the said notice. 12. The Trial Court, in paragraph Nos.11 and 12 of the impugned judgment, has harped on the said point and acquitted the respondent/accused. It is pertinent to point out, at this juncture, that such a defence was not raised, while P.W.1 was in the box and as pointed out earlier, the respondent/accused also did not enter the witness box and also not chose to examine the concerned officials as to the defence projected by him. Hence, on the sole ground, the impugned judgment dismissing the complaint, warrants interference. 13. Hence, on the sole ground, the impugned judgment dismissing the complaint, warrants interference. 13. In the result, the Criminal Appeal is allowed and the judgment dated 21.04.2007, made in S.T.C.No.2016 of 2003, on the file of the Court of Judicial Magistrate No.1, Nagercoil, Kanyakumari District, is set aside and S.T.C.No.2016 of 2003 is remitted back to the Court of Judicial Magistrate No.1, Nagercoil, Kanyakumari District, for adjudication and it is made clear that the evidence already available on record is to be retained and the appellant/complainant as well as the respondent/accused are at liberty to adduce further evidence as to the return of statutory notice with an endorsement "refused". Since the Calendar Case is of the year 2003, the Trial Court is directed to give utmost preference for its early disposal.