IMPORTANT POINT
When payee asserts or pleads service of notice or relies on presumption of deemed service of notice and drawer of cheque denies the service of demand notice, it is a matter to be decided or proved after evidence is led and not in a petition under Section 482 Cr.P.C.

S.B. Majage, J— It is the case of the petitioner-accused that there was no service of demand notice on him and as such, the complaint is not maintainable and consequently, the proceedings initiated on the complaint require to be quashed. On the other hand, it is the case of the respondent-complainant that though the legal notice sent through RPAD was returned with an endorsement as ‘no such addressee’, the demand notice sent under certificate of posting was duly served on the petitioner-accused and thereafter petitioner-accused had personally approached seeking some time telling that he is in difficulties and hence, the complaint is main-tainable.

2. It is trite that giving notice in writing, demanding the cheque amount after cheque is returned dishonoured, is a must as per proviso (b) to Section 138 of Negotiable Instruments Act. In this case, there is no dispute about giving such a notice. What is in dispute is, whether or not, there was service of such notice on the petitioner-accused.

3. It was vehemently argued for the petitioner-accused that simply because notice was sent under certificate of posting, it cannot be taken that petitioner was served with that notice and as such, proceedings require to be quashed under Section 482 of Cr.P.C. On the other hand, it was submitted for the respondent-complainant that in view of the facts of the case, it can be held that there was deemed service of notice and, at any rate, it is a factual aspect, which requires to be considered and decided when parties adduce evidence during trial and as such, at this stage, proceedings cannot be quashed under Section 482 of Cr.P.C.

4. At the outset, it may be noted that Section 138 of the Act invites a liberal interpretation for the person, who has the statutory obligation to give notice because he is presumed to be the loser in the transaction and it is for his interest the very provision is made by the legislature. The words in Clause (b) of the proviso to Section 138 of the Act show that payee has the statutory obligation to ‘make a demand’ by giving notice. The thrust in the clause is on the need to ‘make a demand’. So, when payee sends/despataches demand notice, his part is over and the next depends on what the sendee does. If a strict interpretation is given that the drawer should have actually received the notice, a trickster cheque drawer would get the premium to avoid receiving the notice by different strategies and he could escape from the legal consequences of Section 138 of the Act. So, the Court should not adopt an interpretation which helps a dishonest evader and clips an honest payee as that would defeat the very legislative measure.

5. It is true that in the case of K. Narasimhiah v. H.C. Singri Gowda and Others1, relied on for the petitioner-accused, the Supreme Court has held that when there is legal duty cast on any person under law to give notice, merely showing that such a notice was despatched to the address of the person, to whom it has to be given, giving such a notice is not complete under law. But, it was in the context of giving notice of no confidence motion moved under Municipalities Act. So also, while considering manner of service as per Section 21(1)(a) of the Karnataka Rent Control Act, it was held by this Court in the case of Chandrappa v. Subramanya2, relied on for the peti-tioner that, when notice was sent under certificate of posting, it evidences the fact of posting of a postal article and not the fact of delivery of postal article to the addressee even though address given on the postal article is correct. Similarly, in the case of Ramanna v. T. Jayaprakash3, arising out of Section 138 of Negotiable Instrument Act, while considering a notice sent under certificate of posting, a learned Single Judge of this Court has held that certificate of posting merely evidences fact of posting and not the factum of delivery and is not a proof of service of notice.

6. But, in the case of K. Bhaskaran v. Sankaran V