The main legal point established in the judgment is that in cases involving the service of legal notice and deemed service, the presumption of deemed service can be drawn when the facts warrant, and the complaint should not fail solely based on the absence of explicit mention of the service of notice.

( 1 ) THE petitioner seeks to quash the proceedings initiated against him by the first respondent herein in CC No. 682 of 2000 on the file of the Judicial Magistrate of First Class, Venkatarigi in Nellore district.

( 2 ) THE first respondent filed a private complaint under Section 138 of the negotiable Instruments Act against the petitioner. The case of the complainant, inter alia, in the complaint was that the accused issued a post dated cheque bearing no. 263803 dated 30-7-2000 drawn on bombay Mercantile Co-operative Bank limited in discharge of the debt owed by him for having purchased zari sarees worth rs. 69,180/- under a Bill No. 8/44 on credit basis; and that when the complainant presented the said cheque with Andhira Bank, chikkadapalli Branch on 27-9-2000 for collection, it was returned with the endorsement "funds insufficient"; and that on the request of the accused the complainant presented the cheque again with Andhra bank, Venkatagiri Branch on 31-10-2000 and even on the second time also it was returned with the endorsement "funds insufficient"; and that therefore, he issued a legal notice to the accused demanding him to pay the amount due but the said notice was returned to the complainant on 24-11-2000 as it was not claimed by the accused.

( 3 ) THE petitioner-accused is now seeking to quash those proceedings on the sole premise that it has not been specifically mentioned in the complaint about the receipt of the legal notice got issued by the complainant and, therefore, the complaint is not maintainable.

( 4 ) AT the stage of admission, the learned Counsel appearing for the petitioner seeks to place reliance upon a judgment of this Court in A. Suderxhan v. Mannen (Shabir) and another, 1997 (2) Crimes 707. That was a case where the legal notice got issued on behalf of the complainant was returned with the postal endorsement "not found for 7 continuous day". A learned single Judge of this Court held that it was not a case of constructive notice and due to non-service of notice in terms of Section 138 (b) and (c) of Negotiable Instruments act, an offence under that Section is not constituted. The learned Counsel appearing for the petitioner further seeks to place reliance upon a short judgment of the Apex court in M/s. Shakti Travel and Tours v. State of Bihar and another, 2000 (4) Crimes 150 (SC ). In that case, the Apex Court held as mentioned hereunder thus: undoubtedly, the accused has a right to pay the money within 15 days from the date of the service of notice and only when it fails to pay, it is open to the complainant to file a case under Section 138 of the Negotiable instruments Act. That being the position and in the complaint itself having not been mentioned that the notice has been served, on the assertions made in paragraph 9, the complaint itself is not maintainable.

( 5 ) TURNING to the facts in the instant case, it has been specially mentioned in para 3 of the complaint that on 7-11-2000 when the complainant got issued a legal notice to the accused demanding payment of the amount covered by the dishonoured cheque, the abovesaid cheque (sic notice ) was unclaimed by the accused though he was running business in the same address and it was returned to the complainant on 24-11-2000. Again in para 4 while mentioning as to how the cause of action has arisen, it was averred that the complainant got issued a legal notice on 7-11-2000 demanding him to repay the debt due to him and the said notice was unclaimed by the accused though he was running business in the same address as stated in the complaint. Annexing the necessary documents the complaint was filed before the Court and they include the legal notice, postal receipt and the returned unclaimed registered post cover. Obviously therefore, it was not a case of non-service of notice, nor it was a case where there had been no mentioned about the issuance of the legal notice. On the other hand, it was a specific case of the complainant t