The statutory obligation to give notice under Section 138 of the Negotiable Instruments Act lies with the payee, and the burden of proving the service of notice is on the complainant.

Arijit Pasayat, J. : The appellant (hereinafter referred to as "the accused") calls in question legality of judgment rendered by learned Single Judge of the Andhra Pradesh High Court holding that the question whether notice as required under Section 138 of the Negotiable Instruments Act, 1881 has been served has to be decided during trial and the complaint ought not to be dismissed at the threshold on the purported ground that there was no proper service of notice."

2. Background facts in a nutshell are as follows :

Complaint was filed by Respondent 1 alleging commission of offence punishable under Section 138 read with Section 142 of the Act. It was alleged that cheque dated 30.6.1997 bearing No. SB/A/31 839579 for an amount of Rs. 80,000 issued by the accused in discharge of the advance amount paid by the complainant in respect of the sale consideration was dishonoured by the drawee bank on account of insufficiency of funds. The complainant received this intimation on 2.8.1997. He got issued legal notice on 9.8.1997 through his advocate to the correct address of the accused. In the complaint, it is stated that the said legal notice was returned with an endorsement that the door of the house of the accused was locked. Subsequently, the amount was not paid by the accused. Hence, he filed the complaint. The learned Magistrate after going through the contents of the complaint recorded the sworn statement of the complainant. Taking into consideration the contents of the sworn statement, he opined that under Section 138 of the Act, the service of notice on the person, whose cheque was dishonoured is mandatory and in the instant case the notice was not served on the accused and mere sending of notice by the complainant to the accused cannot be taken into consideration. Holding thus, he dismissed the complaint. The said order was assailed before the High Court. A revision petition in terms of Sections 397 and 401 of the Code of Criminal Procedure, 1973 was filed before the High Court. The High Court by the impugned order held that the procedure followed by the Magistrate is not correct. The complainant complied with the requirement of law by sending registered legal notice. Non-service of notice is not a ground for rejecting the complaint, even before it is numbered. What is the effect of non-service of the notice when the door of the house of the accused was closed, will be considered after trial. Reference was made to a decision of the High Court in V. Satyanarayana v. A.P. Travel & Tourism Development Corpn. Ltd., (1997) 2An LT (Cri) 1 (AP) where it was held that the complaint under Section 138 of the Act cannot be quashed or dismissed merely because the notice was not served on the accused or drawer, without enquiring into the circumstances leading to the non-service of notice.

3. In support of the appeal, learned counsel for the appellant submitted that basic requirement for initiation of proceeding is service of notice. If the complaint itself does not show that notice has been served, it is to be thrown out at the threshold as was rightly done by the learned Magistrate and the High Court erroneously interfered with it.

4. Strong reliance was placed on Shakti Travel & Tours v. State of Bihar, (2002) 9 SCC 415 : 2003 SCC (Cri) 1217 stating that when the complainant did not assert that demand notice has been served, the complaint was not maintainable.

5. Learned counsel for the respondent complainant, on the other hand, submitted that the complaint clearly indicated that the accused managed to get an endorsement about the "house been locked". This was clearly stated to be incorrect endorsement. Therefore, as rightly held by the High Court the effect of the endorsement has to be considered during trial.

6. The factual position in Shakti Travel (supra) as appears from the short order of this Court was different. There was no mention in the complaint about service of notice. In the instant case, there is an assertion about