JUDGMENT :- This is a complainant's appeal against the acquittal of the accused under section 138 of the Negotiable Instruments Act, 1881 (Act, for short).

2. The case of the complainant was that he was the Proprietor of Armstrong Builders and Developers and that on 22-1-2004 the accused had taken a cash loan from the complainant for a period of three months and in part discharge of the said liability the accused had issued a cheque bearing No. 112888 dated 22-4-2004 drawn on the Bicholim Urban Co-op. Bank Limited for a sum of Rupees One Lakh and when the cheque was presented for payment, the same was returned dishonoured with remark dated 2-7-2004 that the funds were insufficient. The complainant sent the notice dated 6-7-2004, which according to the complainant, the accused received on 7-7-2004 but failed to comply with the same within a period of fifteen days and therefore the complainant prosecuted the accused by filing the complaint on 20-8-2004.

3. In support of the complaint, the complainant examined himself and produced the necessary documents including the cheque, the memorandum of dishonour, copy of the registered notice along with the A.D.

4. The case of the accused in his statement recorded under section 313 of the Code of Criminal Procedure, 1973 (Code, for short) was one of denial simpliciter so much so that when the accused when questioned as to whether he had anything to say regarding the case, the accused stated that he had nothing to say.

5. The learned J.M.F.C. by her Judgment/Order dated 28-4-2006 has acquitted the accused and this in spite of the fact that the law provides, in favour of the complainant, several presumptions including under sections 118, 138 and 139 of the Act.

6. The learned Magistrate has come to the conclusion that the complaint filed on 20-8-2004 was filed after the expiry of one month since the statutory notice was received by the accused on 7-7-2004. There is no doubt that section 142(b) of the Act provides that a complaint is required to be filed within one month of the date on which the cause of action arises under Clause(c) of the proviso to section 138. It is now well settled that the cause of action arises not from the date of the notice but from the date of the failure of the accused to make the payment as demanded. The accused was required to make the payment within fifteen days of the receipt of the notice. The notice was received on 7-7-2004. The cause of action would have arisen in favour of the complainant after expiry of fifteen days of 7-7-2004 and therefore it is but obvious that the complaint filed was within time. The learned Magistrate was wrong in acquitting the accused on that count.

7. As per the complainant, the notice was received by the accused on 7-72004. It appears that the complainant was cross-examined in relation to the signature seen on the AD. card produced by the complainant and the complainant stated that the signature on the AD. card and the signature on the cheque did not tally. This fact was presumably taken by the learned Magistrate against the case of the complainant observing that the complainant had not identified the signature on the AD. card. It has been submitted on behalf of the accused, by Ms. R. Kamath, the learned Counsel, that in the absence of the complainant proving the signature on the AD. card, no presumption of service is available in favour of the complainant. There is no dispute that the statutory notice was sent by the complainant upon the correct address of the accused and was received at the given address. It is therefore very clear that once the notice was received at the address at which it was dispatched, the presumption under section 27 of the General Clauses Act was clearly available in favour of the complainant. A similar situation was considered by the Apex Court in the case of K. Bhaskaran vs. Sankaran Vaidhyan Balan and another, 2000(1) Mh.L.J. (S.C.) 193 = (1997) 7 SCC 510. The principle incorporated in section 27 of t

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