JUDGMENT [ENTITY], J.
1. This appeal is filed against the order of acquittal passed by the Sessions Court in a proceeding under [SECTION] of the [ACT] (hereinafter referred to as 'the Act'). The appellant filed a complaint under [SECTION] of the Act before the Judicial Magistrate of the First Class, Nayyattinkara alleging that the first respondent herein executed a cheque for Rs. 26,600/- and when the cheque was presented for payment to the drawee Bank it was dishonoured with the remark "refer to the drawer." He came to know about the dishonour of the cheque only on 4.12.1989. On 5.12.1989 itself the complainant sent a registered letter to the first respondent herein through his lawyer intimating the fact of dishonour of the cheque and also demanding payment of the amount of the cheque. The first respondent evaded service of the lawyer notice and the notice was, therefore, returned by the postal department to the lawyer on 1.1.1990. Therefore, the first respondent committed offence under [SECTION] of the Act.
2. The case of the respondent in his statement under [SECTION] is that the cheque was stolen by the son-in-law of the complainant and that apart from the cheque some other documents were also stolen. In connection with that there was a civil case pending. He also stated that he has no connection with Sri. [ENTITY]. He further stated that he has not written the cheque. His statement is extracted below as follows:
"(Matter in regional language omitted)"
3. The cheque was returned with the endorsement "refer to the drawer." However, in the complaint it is specifically slated that it was returned for insufficiency of funds. PW1 also deposed in terms with the complaint. He also stated that he has given Rs. 26,600/- in case and cheque was written by the accused in front of him so as to get money on 22.10.1989. In cross examination the matter was made clear. In cross examination he staled as follows:
"(Matter in regional language omitted)"
4. Various points were argued before the Magistrate contending that the cheque was not executed by him, that complainant's full name is [ENTITY], but the cheque was written in the name of [ENTITY], that the cheque was stolen from the first respondent by the son-in-law of the complainant, that they were having joint business and that civil cases are pending. It was also contended that the words "refer to the drawer" will not mean insufficiency of funds or no money in the Bank. A cheque can be returned for many reasons. The notice issued was not received by the first respondent. The notice was sent in an incorrect address. Therefore, there is no service of notice. The Magistrate considered all the points and convicted the accused/first respondent herein. In appeal the Appellate Court found that the signature and execution of the cheque by the accused was not proved and that "refer to the drawer" is not enough to prove that there was insufficiency of funds and he was acquitted.
5. The appellant filed an appeal before this Court and the judgment in that case was reported in [PRECEDENT], wherein this Court clearly found that to accept or evaded the notice and that there was, proper service of notice. The first respondent's grievances in this regard are totally unfounded. The cheque was issued from the account of the accused. It belonged to him. The Court below noted that under [SECTION] the presumption has to be rebutted by the respondent. This Court remanded the matter to the Appellate Court for fresh disposal according to law. The Appellate Court again considered the matter and found that the cheque was executed by the petitioner himself. The Court also found that the signature in the Vakalath and in the cheque tallies. No criminal case was filed by the accused against the son-in-law of the complainant regarding theft or forgery of the documents. Even though all the points alleged by the petitioner/complainant were accepted, again he was acquitted on the ground that endorsement "refer to the drawer" will not show that there was insufficiency of fund and, therefore, offence under [SECTION] is not attracted. Against that this appeal is filed.
6. The learned Counsel for the appellant argued that there was no proper notice. It cannot be agitated before this Court now in view of the earlier Division Bench finding. With regard to the execution of the cheque the Appellate Court as well the Magistrate Court found properly that the accused has executed the cheque and all other ingredients were concurrently proved. I see no ground to disturb the above findings.
7. With regard to the remark "refer to the drawer" the matter is now finally, settled by the Supreme Court in [PRECEDENT], wherein the Supreme Court held as follows:
"Lastly, we would refer to the decision by a three-Judge Bench of this Court in the case of [PRECEDENT], dealing with a similar contention and interpreting [SECTION] of the Act. In that case, the Court referred to the earlier decisions in the case of [PRECEDENT], and [PRECEDENT], and agreed that the legal proposition enunciated in the aforesaid decisions to the effect that if the cheque is dishonoured because of "stop payment" instruction to the Bank. [SECTION] would get attracted. It also amounts to dishonour of the cheque within the meaning of [SECTION] when it is returned by the Bank with the endorsement like (i) in this case, "referred to the drawer" (ii) "instructions for stoppage of payment" and stamped (iii) "exceeds arrangement." The Court observed that the object of bringing [SECTION] on statute appears to be to inculcate faith in the efficacy of Banking operations and credibility in transaction in business on negotiable instruments and to promote the efficacy of Banking operations and to ensure credibility in transacting business through cheques "
8. In this connection we also refer to paragraph 5 of the judgment in [PRECEDENT] which is quoted below:
"5. It would thus be clear that when a cheque is drawn by a person on an account maintained by him with the Banker for payment of any amount of money to another person out of the account for the discharge of the debt in whole or in part or other liability is returned by the Bank with the endorsement like (1) in this case, "refer to the drawer" (2) "instructions for stoppage of payment" and stamped (3) "exceeds arrangement." It amounts to dishonour within the meaning of [SECTION] of the Act. On issuance of the notice by the payee or the holder in due course after dishonour, to the drawer demanding payment within 15 days from the date of the receipt of such a notice, if he does not pay the same, the statutory presumption of dishonest intention, subject to any other liability, stands satisfied."
9. In this case in [SECTION] statement accused had no case that he had sufficient money in the Bank. His only case is that the cheque was stolen. [SECTION] of the [ACT] reads as follows:
"139. Presumption in favour of holder It shall be presumed, unless the contrary is proved, that the holder of a cheque received the cheque of the nature referred to in [SECTION] for the discharge, in while or in part, or any debt or other liability."
Here when the execution of the cheque and service of notice are found, the burden lies on the respondent. He failed to discharge the burden that there was sufficient fund in the Bank. In fact, he had no case that he has sufficient fund in the account. The only case is that the cheque was stolen. That case is concurrently found against him. In the above circumstances, the Court below should not have acquitted the accused on the ground that it was not proved that there was insufficiency of fund. Therefore, I set aside the impugned judgment of the Sessions Court and conviction passed by the Magistrate is restored. It is contended that the lower Court did not give chance to him to prove his case even though he filed a petition. I see no substance in the contention. For the reasons stated. I see no ground to remand the matter which was filed in 1990. With regard to the sentence, it is submitted by both sides that the matter is settled, that the amount due with interest was paid and that the complainant has no grievance. However, since the offence is proved and conviction was upheld, the respondent/accused cannot be escaped without sentence. Hence, I am of the opinion that since the matter is settled, sentence of imprisonment is not necessary instead, the respondent is sentenced to pay a fine of Rs. 1,000/- within two months from today. If the fine is not paid within two months, he shall undergo default sentence of two weeks' simple imprisonment.
The appeal is allowed, Impugned judgment is set aside and respondent/accused is convicted and sentenced to pay a fine of Rs. 1,000/- under [SECTION] of the [ACT].