JUDGMENT : This is an appeal filed by the appellant/complainant being aggrieved by the judgment and order of acquittal dated 25.11.2009 passed by the learned II Additional JMFC, Bagalkot, in C.C. No.38/2007. 2. Brief facts of the case of the complainant, the appellant herein, are that the respondent/accused has acquaintance with him since ten years. Due to the acquaintance the respondent approached him and demanded hand loan amount of Rs.50,000/- for his family necessity. Accordingly, the complainant advanced the said amount to the respondent with a condition that he should repay the same within a month. Complainant advanced the amount as hand loan. After receipt of the loan amount, the respondent/accused did not repay the same. Complainant requested the respondent and demanded the loan amount. The respondent on 10.02.2006, in order to repay the loan amount of Rs.50,000/-, had issued a cheque bearing No.21712 for a sum of Rs.50,000/drawn on Sangli Bank settlement. The complainant presented the said cheque through his banker – State Bank of Mysore, Bagalkot Branch, for collection on 11.02.2006. The said cheque was returned dishonoured with an endorsement that ‘the account is closed’. The respondent deliberately with an intention to dupe the complainant had issued the cheque knowingly well that his bank account was already closed. As such on 21.02.2006, complainant got issued the legal notice calling upon the respondent to pay the cheque amount. The respondent intentionally did not chose to claim the said notice and the same was returned on 25.02.2006 with a shara ‘not claimed’. The respondent also not chose to repay the cheque amount and thereby the respondent committed an offence punishable under Section 138 of the Negotiable Instruments Act, 1881 (hereinafter referred to as ‘the NI Act’, for short). 3. Thereafter wards, sworn statement of the complainant was recorded, cognizance of the offence was taken and summons was issued to the respondent/accused. Respondent/accused appeared in the matter through his counsel. The Court recorded the plea of the accused, whereby the accused pleaded not guilty and claimed to be tried. The matter was posted for recording the evidence on the side of the complainant. The complainant got himself examined as P.W.1 and produced five documents marked as Exs.P.1 to P.5. On the side of the defence, the accused got himself examined as D.W.1 and produced documents Exs.D.1 to D.4. 4. The matter was posted for recording the evidence on the side of the complainant. The complainant got himself examined as P.W.1 and produced five documents marked as Exs.P.1 to P.5. On the side of the defence, the accused got himself examined as D.W.1 and produced documents Exs.D.1 to D.4. 4. After hearing on both the sides, the Trial Court, ultimately, dismissed the complaint by acquitting the accused person. Being aggrieved by the same, the appellant/complainant is before this Court challenging the legality and correctness of the judgment and order of acquittal passed by the Trial Court on the grounds as mentioned paragraphs 1 to 8 of the grounds mentioned in the appeal memorandum. 5. I have heard the arguments of the learned counsel appearing for the appellant/complainant and the learned counsel appearing for the respondent/accused. 6. Learned counsel for the appellant/complainant made the submission that though the legal notice sent to the accused person was tendered by the postal authorities, the accused did not claim the said article and accordingly it was endorsed by the postal authorities and hence, it is as good as service of the said article on the respondent/accused. It is also his contention that though the respondent/accused contended that he is staying in Ward No.8 but not in Ward No.9, looking to the Court summons, which was issued to the respondent/accused at the address at Ward No.9 itself, the same was served on the respondent/accused and he received the summons by putting his signature on the overleaf of the said summons. Hence, the learned counsel submitted that it may be Ward No.8, but not Ward No.9, but the question is whether the notice was served on him or not. Hence, the counsel submitted that this aspect of the matter was not at all taken into consideration by the Trial Court and the Trial Court acquitted the accused person on a wrong reading of the material placed on record. Learned counsel further made the submission that looking to the defence of the accused, he admitted the issuance of cheque and his signature on the said instrument but his only contention was that he had issued a blank cheque putting his signature in connection with a transaction between complainant and one Prashant Zigzinagi. Learned counsel further made the submission that looking to the defence of the accused, he admitted the issuance of cheque and his signature on the said instrument but his only contention was that he had issued a blank cheque putting his signature in connection with a transaction between complainant and one Prashant Zigzinagi. Learned counsel submitted that when such a contention was taken, it was for the accused person to prove the same, the presumption is in favour of the complainant that the said cheque was issued in discharge of the existing debt, but the accused has not placed any material to rebut the said presumption. Learned counsel submitted that all these aspects of the matter were not considered by the learned Trial Judge and therefore, prayed to allow the appeal, set aside the judgment and order of acquittal passed by the Trial Court to convict the respondent/accused for the offence punishable under Section 138 of the NI Act; and to impose punishment on the respondent/accused. 7. Per contra, learned counsel appearing for the respondent/accused, during the course of his arguments, made the submission that there was a delay in filing the complaint. He made the submission that, at the first instance, when the respondent/accused was convicted by the judgment of the Trial Court, the accused preferred an appeal before the First Appellate Court and the First Appellate Court allowed the appeal and remanded the matter back to the Trial Court. It is also his contention that no legal notice was issued to the respondent/accused prior to the filing of the complaint before the Court. He also submitted that the respondent was not at all residing in Ward No.9 but was staying in Ward No.8 even as admitted by the complainant himself in his evidence. Hence, on this ground, learned counsel made the submission that the question of not claiming the said registered postal article by the respondent/accused does not arise at all. He also made the submission that the respondent/accused issued the said cheque by putting his signature as a security in connection with the transaction with one Prashant Zigzinagi and he had not at all borrowed the hand loan of Rs.50,000/- from the complainant. Learned counsel also made the submission that the appellant/complainant has not placed any acceptable material to show that the respondent borrowed the amount of Rs.50,000/- from him. Learned counsel also made the submission that the appellant/complainant has not placed any acceptable material to show that the respondent borrowed the amount of Rs.50,000/- from him. He submitted that the Trial Court correctly appreciated all the materials and rightly came to the conclusion in disbelieving the case of the complainant and holding that the complainant had not proved his case that the respondent committed the offence punishable under Section 138 of the NI Act. Hence, he submitted that there is no illegality committed by the Trial Court nor there is any perverse or capricious view taken by the Trial Court in acquitting the accused person, there is no merit in the appeal and the same is to be dismissed. 8. I have perused the grounds urged in the appeal memorandum, judgment and order of acquittal passed by the Trial Court, evidence of P.W.1 and D.W.1, and the documents at Exs.P.1 to P.5 and Exs.D.1 to D.4. So also, I have considered the submissions made by the learned counsel on both sides at the Bar and perused the decision of this Court rendered in Crl.A. No.2584/2008, disposed of on 10.06.2014, relied upon by the learned counsel for the appellant/complainant. 9. Looking to the case of the complainant, himself and the respondent were having acquaintance with each other and hence, the respondent borrowed the amount of Rs.50,000/- from the complainant as hand loan assuring that he would repay the same within a month. The further case is that when the complainant demanded repayment of the amount, the accused did not repay the same, but, at last, the respondent issued the chequeEx.P.1. When the said cheque was presented for encashment, it was dishonoured intimating that the account is closed. Hence, the complainant got issued the legal notice and when the amount was not paid, the complainant approached the Trial Court. 10. When the said cheque was presented for encashment, it was dishonoured intimating that the account is closed. Hence, the complainant got issued the legal notice and when the amount was not paid, the complainant approached the Trial Court. 10. Though it was contended by the respondent/accused that there was a delay in filing the complaint and though the appellant/complainant also filed an application under Section 5 of the Limitation Act before the Trial Court seeking condonation of delay, the Trial Court, after calculation of the period, came to the conclusion that filing of the private complaint before the Court was well within the period of limitation and there was no delay and hence, the Trial Court observed that as there was no delay it has not at all considered the delay application. Perusing the materials placed on record, I am of the opinion that the Trial Court has come to the correct conclusion so far as the delay aspect is concerned. 11. Regarding other merits of the case is concerned, the first and foremost contention of the respondent/accused is that the legal notice said to have been sent by the complainant was not at all served on him; he is residing in Ward No.8 of Bagalkot and not Ward No.9. The Trial Court though held that the complainant established the fact of accused issuing the cheque Ex.P.1 and that the complainant established that the said cheque was issued in discharge of an existing recoverable debt, but the Trial Court acquitted accused only on the ground that the legal notice was not at all served on the accused person. In this regard I have perused the materials i.e., the oral evidence of the parties as well the documents produced in that regard. The address mentioned on the postal cover sent by the complainant, no doubt, is Ward No.9. It is also no doubt true that looking to the cross-examination of P.W.1, he has admitted that the accused person was residing in the locality which comes under Ward No.8. But, the postal article which was sent was returned with an endorsement of the postal authorities that the addressee “not claimed” the said article. I have also perused the lower court records, the summons issued to the accused by the Trial Court. But, the postal article which was sent was returned with an endorsement of the postal authorities that the addressee “not claimed” the said article. I have also perused the lower court records, the summons issued to the accused by the Trial Court. Looking to the address mentioned in the summons, on the 1st page, the ward number is mentioned as ‘Ward No.9, Amarashetti Galli, Bagalkot’. It is also mentioned that the accused is R/o Opp: Kasat Collection. The said summons was served on the accused person who received the summons by putting his signature on the overleaf. The same address was written on the postal cover also. Therefore, it gives an impression that even if ward number is wrongly mentioned the postal authorities took the article to the correct address and as the addressee not claimed the postal cover, it was returned back. Otherwise, there is no reason that the summon which was also addressed to Ward No.9 was served on the accused person and he has received it by putting his signature on the overleaf of the same. This aspect is not at all considered by the Trial Court. Apart from that, even assuming that the said notice was not served on the respondent/accused, the next question would be whether the accused can be acquitted only on that ground. The respondent/accused received the summons and appeared before the Trial Court. When that is so, he came to know the case filed by the complainant that he is due to pay the complainant an amount of Rs.50,000/-, which amount could have been paid by the respondent within 15 days from the date of his appearance before the Court, on service of summons. That is also not done by the accused in this case. 12. I have also perused the judgment of this Court dated 10th June 2014 passed in Crl. A. No.2584/2008 wherein, by referring to the judgments of the Hon’ble Apex Court, the learned single Judge held the correct legal position that after appearing before the Court, within 15 days, the accused should have made payment of the said amount to the complainant, which is also not done. Therefore, the contention that the legal notice, which was sent by the complainant prior to presentation of the complaint, was not served on the respondent/accused, cannot be a ground for acquittal of the accused person and for dismissing the complaint. Therefore, the contention that the legal notice, which was sent by the complainant prior to presentation of the complaint, was not served on the respondent/accused, cannot be a ground for acquittal of the accused person and for dismissing the complaint. Therefore, the view taken by the Trial Court in this regard is totally against the provisions of law and it is perverse and capricious. 13. When the respondent/accused admitted his signature on the cheque and also issuance of the said cheque to the complainant and at the same time, when a contention was raised that it was a blank cheque given as a security in connection with a transaction with one Prashant Jigjinagi of Bagalkot, it is for the accused person to place acceptable material before the Court to show that really he had given the said cheque towards security in connection with a transaction with Prashanth Jigjinagi and he had not borrowed any amount from the complainant. As the respondent/accused has contended that he put only the signature on the cheque and other contents of the cheque were filled by the complainant, it could be relevant to refer to Section 20 of the NI Act which reads as under: “20. Inchoate stamped instruments. Where one person signs and delivers to another a paper stamped in accordance with the law relating to negotiable instruments then in force in India, and either wholly blank or having written thereon an incomplete negotiable instrument, he thereby gives prima facie authority to the holder thereof to make or complete, as the case may be, upon it a negotiable instrument, for any amount specified therein and not exceeding the amount covered by the stamp. The person so signing shall be liable upon such instrument, in the capacity in which he signed the same, to any holder in due course for such amount; provided that no person other than a holder in due course shall recover from the person delivering the instrument anything in excess of the amount intended by him to be paid there under.” Therefore, even if it is assumed that the complainant filled the other contents in the cheque, which is admittedly signed and issued by the accused person, it is not fatal to the case of the complainant and also does not amount to material alteration of the instrument which is permissible as per Section 20 of N.I. Act. Therefore, the contention of the respondent/accused in this regard holds no water. 14. Regarding the contention of the respondent/accused that he issued the cheque in connection with a transaction with Prasanth Jigjinagi, as the burden is upon the accused person to prove the same, but the accused has not examined the said Prasanth Jigjinagi before the Court to prove the said contention. Simply offering an explanation by way of defence is not sufficient, but the said defence has to be established by adducing cogent, acceptable and worth believable material which is not done in this case. Therefore, considering all these aspects of the matter, I am of the opinion that the learned Trial Judge wrongly read the entire material and wrongly came to the conclusion in acquitting the accused holding that the complainant has not proved the case of offence under Section 138 of NI Act. Therefore, the judgment and order of acquittal passed by the Trial Court is not sustainable in law. 15. Accordingly, the appeal is allowed. The judgment and order of acquittal is set aside. As the complainant has proved that the respondent/accused committed the offence punishable under Section 138 of the NI Act, the respondent/accused is hereby convicted for the offence under Section 138 of the NI Act. 16. I have also heard the learned counsel on both sides regarding the sentence. Learned counsel appearing for the respondent/accused made the submission that a lenient view may be taken in the matter while imposing the punishment. Perusing the materials placed on record and also the nature of offence committed by the respondent/accused, the respondent is sentenced to pay a sum of Rs.55,000/- for having committed the offence punishable under Section 138 of the NI Act. Out of the amount of Rs.55,000/-, a sum of Rs.50,000/- is ordered to be paid to the complainant towards compensation and the remaining amount of Rs. 5,000/- be remitted to the State Government. Appeal is allowed accordingly