( 1 ) THIS appeal is filed against the judgment dated 27-3-1998 in c. C. No. 118 of 1996 on the file of the iv Additional Judicial First Class Magistrate, kakinada, wherein the respondent-accused was acquitted under Section 255 (1) of the code of Criminal Procedure of the offence under Section 138 of the Negotiable instruments Act, 1881 (for short the Act ).

( 2 ) THE case of the complainant, in brief, is as under:

( 3 ) ON 15-11-1994, the respondent- accused borrowed an amount of Rs. 75,000. 00 from the complainant-P. W. l for the purpose of investment in his business and executed a promissory note (original of Ex. Pl ). On demand, the respondent-accused gave a cheque bearing No. 846763, dated 22-8-1995 (Ex. P2) for Rs. 50,000. 00 drawn on State Bank of Hyderabad, APSP Quarters, Kakianda towards part payment of the amount due under Ex. P l. P. W. I presented Ex. P2 for encashment through Andhra Bank, Srinagar branch, Kakinada on 22-1-1996. The same was returned as dishonoured for want of sufficient funds, through Ex. P3 memo, dated 23-1-1996. P. W. I was informed about the dishonour of cheque on 27-1-1996. Thereafter, P. W. I got issued Ex. P4- legal notice on 29-1-1996 to the respondent accused through registered post and also under certificate of posting informing about the dishonour of cheque for want of sufficient funds and requesting the accused to pay the amount covered by the cheque within 15 days from the date of receipt of notice. The respondent-accused received the notice sent under certificate of posting (Ex. P7) on 31-1-1996, but the accused evaded to receive the notice sent by registered post and the cover (Ex. P6) was returned with an endorsement addressee left . In spite of receipt of notice, the respondent did not pay the amount covered by the cheque and thus, the respondent was liable for punishment under Section 138 of the Act.

( 4 ) THE plea of the accused was one of total denial.

( 5 ) BEFORE the Trial Court, the complainant examined himself as P. W. 1 and got examined P. Ws. 2 and 3 on his behalf. He got marked Exs. P1 to P 11. The accused did not adduce either oral or documentary evidence. On appreciation of the entire evidence placed before it, the Trial Court found the accused not guilty of the offence under Section 138 of the Act and as such, acquitted him under Section 255 (1) of cr. P. C. Aggrieved by the same, the present appeal is filed by the complainant.

( 6 ) INSOFAR as the service of notice as required under Section 138 (b) of the Act is concerned, the learned Counsel for the appellant-complainant strenuously contended that Ex. P4 legal notice was sent by registered post with acknowledgment due on 29-1-1996 and through certificate of posting on 30-1-1996 to the respondent. But, the notice sent by registered post was returned unserved on 31-1-1996 (Ex. P6) with an endorsement addressee left . On this, learned Counsel for the appellant submitted that once the notice as required under section 138 (b) of the Act is sent by registered post, whether it was refused or not claimed or returned with the endorsement addressee is left is of no consequence, if the address was found to be correct. According to the evidence of P. W. 1, he got issued Ex. P4 notice on 29-1-1996 by registered post and the same was returned under Ex. P6 on 31-1-1996. Even in the teeth of this evidence, learned Counsel for the appellant contends that since address of the respondent-accused was not found to be incorrect, it must be deemed that it was served on the respondent-accused, even if there is postal endorsement addressee left . Even in the cross-examination of p. W. I, it was suggested by the accused that the statutory notice was not sent to correct address, but the same was denied by P. W. I.

( 7 ) I am afraid, I cannot accept the said contention. The endorsement of the postal departmental as refuse to receive or some other endorsement, which gives an impression that the addressee wantonly avoid to