The appellant/complainant preferred the present appeal under Section 378(4) CrPC, challenging the judgment dated 01.05.2006, passed in S.T.C. No.232 of 2005 on the file of the VIII Metropolitan Magistrate at Rajendranagar, wherein and whereunder the Accused No.2, who was tried for an offence punishable under Section 138 of the Negotiable Instruments Act, was acquitted.

The facts in issue are as under:

The complainant/appellant filed a private complaint against the accused for an offence punishable under Section 138 of the Negotiable Instruments Act. The allegations in the compaint would show that Accused No.2 is a labour contractor and Secretary of Accused No.1, is known to the complainant. Out of acquaintance, the Accused No.2 approached the complainant in the month of January 2003 and requested him to finance an amount of Rs.2,00,000/- for his business necessities. Considering the necessities and acquaintance, the complainant advanced an amount of Rs.2,00,000/- on 10.01.2003. The Accused No.2 promised to return the said amount within one year, but however, failed to do so. Pursuant to repeated demands made by the complainant, Accused No.2 is said to have issued a cheque bearing No.389206 dated 24.05.2004 drawn on the State Bank of India, Hyderabad for Rs.2,00,000/-. The said cheque when presented for collection at Canara Bank, Rajendranagar branch on 26.07.2014 was returned with an endorsement the funds are insufficient. After receipt of cheque return memo, the complainant got issued a legal notice dated 07.08.2004 to the accused calling upon them to pay the amount due. Inspite of receipt of the notice, the accused failed to pay the same. Hence, a private complaint was filed for an offence punishble under Section 138 of N.I. Act. After recording the sworn statement of the complainant, the case was taken on file and summons were issued to the accused.

On appearance, the accused was examined under Section 251 CrPC with reference to the accusation made against them, but the same was denied and claimed to be tried.

In order to prove his case, the complainant examined himself as P.W.1 and got marked Exs.P-1 to P-7.

After closure of the evidence, the accused was examined under Section 313 CrPC with reference to the incriminating circumstances appearing against them in the evidence of P.W.1. The accused denied the same and reported no defence evidence.

After hearing both sides, the trial Court acquitted the accused holding that the complaint was being instituted without there being any cause of action as the notice sent was not served on the accused. The court also held that the complainant failed to prove that Ex.P-1 was issued towards discharge of a legally enforceable debt.

The main ground urged by the learned counsel for the appellant is that the trial Court erred in dismissing the complaint on the ground that there was no proper service of notice on the accused. He submits that the notice was sent to a proper and correct address of the accused. According to him, when once the notice was sent to proper address it has to be presumed that there was proper service of notice in terms of Section 138 of the Negotiable Instruments Act.

On the other hand, the learned counsel for the respondents/Accused submits that the mandatory requirements, as contemplated under Section 138(c) of the Act, are not complied with as the notice was not served on the accused. His argument is to the effect that Section 27 of the General Clauses Act can be invoked to prove deemed service if there is no material to show service of notice. In the instant case, the notice was said to have served on one Sujatha, whose relationship with the Accused No.2 is not established. As no efforts were made to summon the said Sujatha, he submits that there was no compliance of Section 138 of N.I. Act.

To appreciate the rival contentions, it may be necessary to refer to the evidence of P.W.1. In his evidence, the complainant, who examined himself as P.W.1, deposed that pur