IMPORTANT POINT
Where notice under Section 138(b) of the Negotiable Instruments Act was returned undelivered with report ‘no such addressee’ and complainant presented cheque again and gave second notice which was served upon accused, complaint filed within limitation of second notice though beyond limitation from 1st notice, was maintainable.

K.A. Abdul Gafoor, J.—The complaint filed by the appellant, alleging offence punishable under Section 138 of the N.I. Act against the first respondent did not succeed. Therefore, this appeal. Taking into account the fact that the appellant had presented the cheque in question thrice, on 1.1.1998, 2.1.1998 and 7.3.1998 and that he had issued two notices, the first on 13.1.1999 after the 2nd presentation which returned unserved as no such addressee and a second one on 13.3.1998, after the third presentation which really reached the addressee, the respondent, the Court below found that the complaint was filed beyond 30 days of the date when the cause of action arose, with reference to the first among these two notices. The Court below also found that there was difference in ink and handwriting with regard to the filling of the cheque as well as signature thereon.

2. As regards the second ground now it is now trite that when the cheque is admittedly signed by the drawer irrespective of the fact that, that had been filled up by any other person, putting the date and amount, the drawer cannot get absolved of the liability under Section 138 because he has to rebut the statutory presumption against him by adducing further evidence that it was not one given in discharge of the liability that he owed to the payee either in whole or in part. Such an evidence is absent in this case. Therefore, the second ground on which the acquittal was recorded by the Court below is not sustainable.

3. Whether the complaint was filed beyond the period of limitation with reference to the service of notice is the moot question that has to be considered.

4. Admittedly the cheque was presented on a second time on 2.1.1998. It bounced and a notice was issued. It is in evidence that it returned back to the sender on the reason that there was no person as the addressee shown on the registered cover. This fact is not disputed. Thus the notice sent on 13.1.1998 demanding payment of the amount never reached the accused. Then the cheque was presented for the 3rd time for encashment, on 7.3.1998. It did have the same fate in the third time as well. This resulted in the second notice on 13.3.1999 demanding payment of amount. It really reached the accused. He responded as well as to the said notice. The complaint has been filed within 30 das from the date of receipt of this second notice. It is not in dispute, if the service of the second notice is taken as the basis for cause of action, that the complaint has been filed within the period of limitation whereas, if the first notice is taken, the complaint has been filed beyond the period of limitation provided for in clause (b) of Section 142.

5. The accused relies on the decision in Kannan v. Kothandan.1 The evidence in the case on hand shows that the complainant has sent the first notice after second presentation on 13.1.1998. Though, it did not reach the addressee, he had contacted the addressee and told him that the cheque had bounced. Therefore, there was notice to the drawer/accused by words from the complainant preceded by a notice, which he did not receive. Therefore the cause of action had arisen within 30 days of communicating that fact orally by the complainant to the accused. True, he would have been right in saying so. If he had been aware of the contents of the first notice sent on 13.1.1998. Unfortunately, going by the evidence on record it did not reach him. It returned back to the sender on the reason that there was no such addressee, meaning thereby it had never come to the knowledge of the addressee. In such circumstances, by reason of that notice no cause of action had arisen, in so far as he did not receive that notice. True the complainant had orally told him about the bouncing of the cheque. But the demand in terms of clause (b) of the proviso under Section 138 shall be in writing and in the form of a notice. The mere communication about the bouncing of the cheque will not satisfy the statu