IMPORTANT POINT
Notice refused to be accepted by addressee can be presumed to have been served on him.

Anand Byrareddy, J.— Heard the learned Counsel for the appellant and the learned Counsel for the respondent.

2. The facts are that the appellant herein was the complainant, who had alleged that the respondent and he were friends and the respondent was carrying on business as a Civil Contractor alongwith his brother at Raibag and Gokak Taluks. The respondent who was said to be in need of funds for his business, had approached .the complainant for financial help. The accused had therefore requested for a loan of Rs.50,000. The complainant is said to have arranged a loan of Rs.48,000 and the same was given to the respondent in May 2000. The accused while accepting the same, had assured repayment within four months and to secure due repayment, had issued a post-dated cheque dated 4.8.2000 for the said sum of Rs. 48,000. The same was drawn on Corporation Bank, Gokak Branch. Since the cheque was type-written and the complainant, in order to ascertain the correctness of the signature of the respondent, had cross-checked the same with the banker of the respondent and it is thereafter that the cheque was presented for encashment. However, the same had been returned with an endorsement that the funds were insufficient in the account. This was intimated to the appellant under a letter dated 4.12.2000. The appellant had thereafter issued a legal notice to the accused dated 11.12.2000. The same was served at the address of the accused on 28.12.2000.

Thereafter, inspite of service, the respondent not having complied with the demand for payment of the amount covered under the cheque, the complainant/appellant herein had initiated proceedings by filing a private complaint, for an offence punishable under Section 138 of the Negotiable Instruments Act, 1881 (hereinafter referred to as ‘the Act’ for brevity).

The said complaint was resisted by the respondent, who entered appearance on summons being issued and contested the proceedings. At the trial, the Court of the Magistrate has held that insofar as the service of notice of demand, which is prescribed as a pre-condition under Section 138 of the Act is concerned, the Court found that the notice was received by one Ningappa Piragi and the acknowledgment does not bear the signature of the accused insofar as such service is concerned and when the accused had categorically denied having received the said notice, though a presumption would arise that the notice was sent through registered post and was received by the addressee, in view of the categorical denial, it was the complainant who ought to have proved to the satisfaction of the Court that the accused had actually received the notice and in that view of the matter, since the notice was found to have been received by the aforesaid person and not by the accused, the Court held that the complainant had not discharged the burden of establishing due service, by examining the post-man, who had actually delivered the registered letter and since the complainant was not aware of the signature of the accused, it was all the more necessary for the complainant to have established the said circumstance and has held the same against the complainant and has found that the pre-condition for initiating criminal proceedings was not complied with. The Court has further held that even if it was to be assumed that the complainant had met this requirement, the main ingredient of the offence punishable under Section 138 of the Act was that the accused had, in order to discharge a legal liability, had issued the cheque, which was alleged to have been dishonoured and has addressed the transaction that was alleged between the parties and has accepted the contention put forward by the respondent that he was not a businessman nor was he engaged as a Civil Contractor, but was a student studying at Belgaum Homeopathic Medical College and in that view of the matter, the entire transaction was denied. The Court has held that when there is a denial of the very legal