The burden of proof lies with the complainant to establish the non-receipt of the notice by the accused and the justification for issuing a second notice under the Negotiable Instruments Act.

( 1 ) THE petitioner, an accused in the Court of Metropolitan Magistrate, Delhi in a complaint filed by the respondent under Sections 138 and 142 of the Negotiable Instruments Act (hereinafter referred to as "at Act"), has come to this Court under Section 482 of Criminal Procedure Code with the prayer to quash the proceedings arising out of criminal complaint case No. 33/1 of 1997 titled P. C. Nanda and Sons (H. U. F.) v. M/s. Ganga Automobiles and Others.

( 2 ) I have heard learned counsel for the parties. The petitioner questions the maintainability of the present complaint filed on the basis of notice dated 3. 1. 1997. It is urged that the respondent/complainant had earlier issued a notice dated 18. 11. 1996 also by registered A. D. post, but did not file any complaint under Section 138 of the Act within a period of one month of the cause of action, as required under Section 138 (c) of the Act.

( 3 ) LEARNED counsel for the petitioner has drawn the attention of this Court to para-9 of the complaint in which the respondent himself had averred that notice dated 18. 11. 1996 was sent by posted receipt No. 3682, but had pleaded that the said notice was apparently not served as acknowledgement due card was not received back and hence, he was not relying on the said notice. The second notice was issued on 3. 1. 1997 by registered A. D. post and when no payment was made within the statutory period, the complaint was lodged.

( 4 ) THE contention of learned counsel for the petitioner is that once notice dated 18. 11. 1996 was issued by registered A. D. post, presumption of its service under Section 27 of the General Clauses Act arose and as such, the complaint ought to have been filed within a period of 30 days of non-payment after expiry of the statutory period of 15 days after service. According to him, it was for the respondent/complainant to ascertain from the postal authorities about the date on which the notice sent by him had been served and thereafter compute the period during which he could file a complaint. He could not ignore his notice from which limitation flowed under Sections 138 and 142 of the Act.

( 5 ) LEARNED counsel for the respondent on the other hand has contended that,the respondent was well within his rights to ignore the notice dated 18. 11. 1996 in as much as its acknowledgement was not received back and he did not know as to whether it had been served or not. He further contends that after the despatch of the said notice, the respondent had again contacted the petitioner and on his assurance that the cheque would be encashed, he had again presented the cheque to the bankers, but it was dishonoured. According to him, the assurance given by the petitioner and fresh presentation of the cheque to the bankers on 20. 12. 1996 provided a fresh cause of action and as such, his complaint was well within the period of limitation.

( 6 ) LEARNED counsel for the petitioner has placed reliance upon a judgment of the Supreme Court of India in K. Bhaskaran v. Sankaran Vaidhyan Balan and Another, (1999) 7 SCC 510, wherein the Court considered the question of notice in terms of Section 138 of the Act and referred to Section 27 of General Clauses Act to hold that where a sender had despatched the notice by post with the correct address written on it, it should be deemed to have been served on the sendee unless he proved that it was not served and he was not responsible for such non-service.

( 7 ) IN the present case once the respondent/complainant had issued a notice to the petitioner by registered A. D. post on 18. 11. 1996, a presumption arose that the notice had been served on the petitioner affording a right to the respondent to file a complaint under Section 138 of the Act. The respondent had no justification at all to presume that the said notice had not been served merely on account of the fact that A. D. card had not been received back. It was his duty to make enquiries from the postal authorities as to w