IMPORTANT POINT
Cause of action for prosecution of accused u/s. 138 of Negotiable Instruments Act arises only from date of receipt of notice by drawer or from date of his Knowledge of notice or from date of his refusal to receive notice.

S. Marimuthu, J. - This appeal is filed by the complainant one Jayachandran questioning the judgment of acquittal delivered by the Judicial Magistrate of 1st Class, Trichur in S.T. No. 690 of 1992. The case of the appellant as culled out from the judgment of the Trial Court as well as from the argument of the learned Counsel appearing for him would be that a cheque was issued in his favour for a sum of Rs. 25.000/- by the accused/ respondent and when the cheque was put in the Bank for collection it was returned with an endorsement that there was no sufficient fund in the account of the respondent. On receipt of the memo of the Bank within 15 days, the appellant issued notice to the respondent. The notice returned unnerved. Therefore the appellant filed a complaint under Section 138 of the Negotiable Instruments Act (hereinafter referred to "the Act"). Learned Counsel for the appellant submitted that the acquittal of the respondent is erroneous and it requires interference by this Court.

2. On the other hand the submission of the learned Counsel appearing for the respondent would be that Proviso (c) of Section 138 of the Act, which gives a right to the drawer was not complied with in this case and therefore the acquittal recorded by the Magistrate is correct and it is in accordance with law.

3. On account of the above rival submissions on both sides, the point to be decided is whether the judgment of acquittal recorded by the Court below can be sustained.

4. The cheque drawn by the respondent is marked as Ext. P1. The memo of the Bank returning the cheque as dishonoured as well as the letter sent by Bank have been marked as Ext. P2 and P3 dated 13-10-1992. On receipt of Ext. P2 memo, the appellant issued a statutory notice on 24-10-1992, a copy, of the same has been marked as Ext. P4. The original of Ext. P4 notice was returned unserved with the postal endorsement "Addressee out of station Hence returned". The unserved cover is marked as Ext. P5. The postal endorsement in Ext. P5 would disclose that the postman had gone to the residence of the respondent on 5 occasions and on all these 5 occasions the respondent was out of station and therefore, he finally returned the cover on 2-11-1992. Leaned Counsel for the appellant submitted that giving the notice on 24-10-1992 is sufficient to perform his duty as contemplated under Proviso (c) of Section 138 of the Act and, therefore he has nothing to do with the non-receipt of the notice by the addressee namely the drawer of the cheque. No doubt, a reading of Provisos (b) and (c) of Section 138 of the Act would evince that the payee (complainant) has nothing to perform on his part as contemplated in Proviso (c) of Section 138 of the Act. In support of the above submission the learned Counsel for the appellant placed before me the following decisions of this Court. The same decisions were also relied upon by the learned Counsel appearing for the respondent in support of his case:

(1) In Sosamma v. Rajendran1, a Single Bench of this Court has held as follows:

“…….the liability under Section 138 of the Act would arise only if the accused defaulted payment within 15 days of the "receipt" of notice. This has got special significance: only if the person accused of the offence knows as to the dishonour can he pay the amount within the stipulated time. The purpose and object of the said provision cannot be lost sight of in interpreting the provision regarding service of notice. There may be cases where notice is returned unclaimed on account of the deliberate evasion by the accused when the same was tendered by the postman. The general burden to prove the prosecution case since rests with the complainant, it is necessary for the complainant to prove the facts constituting the sending of notice and its receipt."

(2) In Kunjan Panicker v. Christudas2, a Division Bench of this Court has held that the endorsement made by the postal authority that the cover was unclaimed amounts to refusal by t