IMPORTANT POINT
When notice under Section 138 of Negotiable Instruments Act was sent to an incorrect address, presumption as to service of notice, not available.

Y.P. Nargotra, J.— The petitioner through this petition is seeking the quashment of the proceedings initiated on the complaint of the respondent filed u/s. 138 of the Negotiable Instruments Act by invoking the provisions contained in Section 561- A, Cr. P.C. The brief facts requiring notice need to be stated.

2. The complainant has alleged in the complaint that the accused received Rs. 3.00 lacs on 17-1-1997 as loan from the complainant firm and agreed to repay the same along with interest after three years from the date of receipt thereof. He executed the necessary documents. The husband of the accused stood as guarantor. The accused made the payment of interest from month to month but defaulted w.e.f. 1-4-2002. Then the accused issued a cheque for a sum of Rs. 3.00 lacs in favour of the complainant drawn on Union Bank India, Branch Gandhi Nagar Jammu on 15-5-2002. The complainant presented the cheque with his bankers, Oriental Bank of Commerce, Ragunath Bazar Jammu, however the same was received back on 25-5-2002 through registered post accompanied by a memo of the Bank of the accused dated 17-5-2002 with the endorsement that the cheque has been dishonoured on account of having kept insufficient amount by the account-holder in his account. The complainant issued a notice of demand on 2-6-2002 and sent the same to the accused on the address, 143 Sector 5, Chhani Himmat Jammu through registered post but the notice was received back without service with the endorsement “addressee left without address, returned to the sender”. In para 8 of the complaint the complainant has further alleged that “this fact of dishonouring of the cheque as well as the fact that the envelope containing the notice dated 2-6-2002 was received back was brought to the notice of the accused at her residence i.e. Ist Floor House No. 379/5 Chhani Himmat Jammu. The accused on attaining this information assured the complainant that by all means the amount of the cheque on being further presented in mid of November 2002 well before the date of the expiry of the cheque shall be duly realized. The cheque was further presented by the complainant on 15-11-2002 on believing on the assurance given by the accused but the cheque was again dishonoured and the bankers of the accused issued a memo dated 16-11-2002 with the endorsement “account closed on advice”. After the cheque was again dishonoured, the complainant sent a notice of demand dated 30-11-2002 through registered post to the accused demanding payment of Rs. 3.00 lacs within a period of 15 days from the date of receipt of notice. Same notice will also sent through courier service, was received by the accused on 5-12-2002. As the accused did not meet the demand, the complainant filed the instant complaint against the accused in the court of Sub-Judge Judicial Magistrate, Jammu. Learned trial Court has taken the cognizance upon the complaint and issued process to the accused.

3. Mr. Sethi, learned counsel for the petitioner has argued that the complaint is not maintainable in view of the fact that it was not filed within the statutory period on the cause of action which arose to the petitioner somewhere in the month of June 2002 in view of the averments made in para 8 of the complaint. He has further argued that the complainant was not legally entitled to receive the same cause of action by issuing a fresh notice of demand upon the accused through the notice served on the accused on 5-12-2002.

4. Per contra learned counsel for the respondent-complainant has argued that as the first notice of demand had not been served upon the accused, therefore, he was well within his powers to have issued the second notice. The cause of action for filing the complaint has arisen to him on the basis of service of the second notice. Since the complaint had been filed within the statutory period, after service of the second notice, the plea put forth by counsel for the petitioner is without any merit.

5. I have consider