1. Heard the learned counsel for the petitioner. The learned Counsel for the respondent has remained absent even though the matter was adjourned several times to enable the counsel to appear and contest the case.

2. The petitioner herein was the accused on a complaint by the respondent, alleging an offence punishable under Section 138 of the Negotiable Instruments Act, 1881 (Hereinafter referred to as the 'NI Act', for brevity).

3. The facts of the case are as follows:-

“It was alleged by the respondent that the petitioner had borrowed Rs.10,00,000/- and had sought to refund the same, by issuing a cheque for a sum of Rs.9,00,000/- dated 15.11.1998. When the same was presented for encashment, the petitioner's banker is said to have returned the same with an endorsement, dated 17.11.1998, that there were insufficient funds in the account of the petitioner. A notice dated 24.11.1998 was issued by the respondent through his counsel. Though the petitioner is said to have received the same, since he did not meet the demand for refund of the money covered under the cheque, a private complaint was filed under Section 200 of the Code of Criminal Procedure, 1973 (Hereinafter referred to as the 'Cr.PC', for brevity). The trial court having taken cognizance, had issued summons to the petitioner. The petitioner appeared through counsel and contested the case. The respondent had tendered evidence as PW.1 and also that of the bank manager as PW.2. The petitioner had also tendered evidence. The primary defence of the petitioner before the trial court was that the complaint for an offence punishable under Section 138 of the NI Act had been filed prematurely and therefore, there was no cause of action for the complaint and that the same ought to have been rejected. The basis for this contention was that the respondent is said to have issued notice as prescribed under Section 138 of the NI Act as on 24.11.1998. There was no indication as to the date of service of notice on the petitioner.

Though the petitioner has replied to the notice by a reply dated 2.12.1998, the complaint having been filed on 14.12.1998, unless the respondent pleaded and established that the notice was served on a particular day and if the period was computed from that date, the complaint was maintainable, it could not be presumed that the complaint had been filed in accordance with Section 138 of the NI Act. It was also pointed out that the respondent had not tendered any evidence in this regard nor had asserted that the notice had been served on a certain day and no evidence was adduced of any such service. It was also asserted that in a last minute effort to save the day, the respondent complainant had sought leave of the court below to tender evidence, when the matter was set down for final arguments and had produced correspondence addressed to the postal authorities, whereby the complainant had sought information as to the date on which the notice issued by registered post had been served on the petitioner. The postal authorities were unable to provide any clue. Though the respondent had claimed that he had received a phone call from the petitioner's wife on 26.11.1998 to inform him that a notice had been served on the petitioner and that he would reply appropriately to the same, this did not establish the fact that the notice had been served on the petitioner on 26.11.1998. In addressing this aspect of the matter, the trial court has noticed that though the notice issued by the respondent to the petitioner was dated 24.11.1998, it had actually been despatched on 25.11.1998 and the reply of the petitioner dated 2.12.1998, was actually despatched on 5.12.1998 and received by the counsel for the respondent on 7.12.1998. Therefore, there would have been cause of action for the complaint, if the petitioner had received the notice on or before 28.11.1998. While noticing that the complainant had not indicated as to when the notice had been served on the petitioner an