G.L. Gupta, J.—This petition u/s. 428 Cr.P.C. is directed against the order dt. 24.10.1998 passed by the learned Judicial Magistrate, Sri Vijaynagar Whereby he dismissed the application of the petitioners for dropping proceedings against them.

2. Mr. Jain, learned counsel for the petitioners, contended that the cause of action to file complaint u/s. 142 aries only after a notice is served by the holder of the cheque on its drawer but in this case the petitioner had not been served with a notice. Relying on the cases of Tomy Jacob v. Thomas (JT 1997(3) SC-344) and Chimanlal v. State of Rajasthan (1997 (3) RLW (Raj.)-1446), he submitted that the cognizance order be quashed.

3. The learned public prosecutor, on the other hand, pointing out that the notices were sent to the petitioners within15 days of the receipt of the information from the bank but they avoided the service of the notices, argued that it should be presumed that they had notice of the dishonour of the cheque.

4. I have considered the rival contentions of the parties, Under proviso (b) to Section 138 of the Negotiable Instruments Act, 1981, it is necessary that the holder in due course of the cheque makes a demand for the payment of the amount of the cheque by giving a notice in writing to the drawer of the cheque within 15 days of the receipt of the information by him from the bank regarding the return of the cheque as unpaid.

5. In the instant case, the cheque issued by the petitioners in favour of respondent M/s. Khurana Bros. was dishonoured by the bank on 4.5.1998. The holder in due course (complainant) sent registered notices to the petitioner on 14.5.1998. The notices were returned by the Postal Deprtment with the report that the postman visited the establishment of the petitioners again and again and every time the employees informed him that the owner had gone out. After the respondent No.2 received back the registered envelops, he filed complaint on 24.6.1998. The facts mentioned above clearly show that the holder in due course (complainant) had sent notices to the petitioner within 15 days of the receipt of the information of the dishonour of the cheque. It is obvious that there was compliance of Clause (b) proviso to Section 138 of the Act by the complainant.

6. The reports on the envelops show that the postman had taken the envelops to the establishment of petitioners again and again but Om Parkash (owner) could not be personally served as he was not available. Clause (c) of proviso to Section 138 of the Act provides that the offence is committed when the drawer of the cheque fails to make payment of such amount to the holder in due course of the cheque within 15 days of the 'receipt' of the notice.

7. It is no doubt true that in the instant case the petitioners had not received the notices personally. But the question is whether on the basis of the reports recorded by the postal Department, it can not be presumed that they had notice of the dishonour of the cheque issued by them of the complainant. There may be cases where notices is returned undelivered on account of deliberate evasion by the accused, when the same was tendered by the postman. In my opinion, if tender of the notice by the postman at the address of the accused is proved, and it is established that the notice could not be personally served due to wilful default or deliberate evasion of the accused, then the same may constitute "receipt of notice". Of course, the burden to establish these facts rests on the complainant. In this regard the observation of the Apex. Court in the case of M/s. Madan and Co. v. Wazir Jaivir Chand (AIR 1989 SC-630) on the interpretation of service of notice in the case under J. & K. Houses and Shops Rent Control Act may be usefully reproduced :_

"We are of the opinion that the conclusion arrived by the Courts below is correct and should be upheld. It is true that the proviso to CL (i) of S. 11(1) and the proviso to S. 12(3) are intended for the protec