Service of demand notice is an essential ingredient of the offence under Section 138 of the Negotiable Instruments Act and must be proved beyond reasonable doubt. The presumption of service of a registered letter under Section 114(e) & (f) of the Evidence Act and Section 27 of the General Clauses Act read with the provisions of the Indian Post Office Act does not arise if the address is incorrect.

Ram Prakash Gupta J. : Special Leave to appeal under section 378(4) of the Code of Criminal Procedure was granted by S.P.Rajkhowa, J. on December 9, 1993.

2. None appears for the Appellant. Mr. Biplab Mitra, learned Advocate, present in court asked for passing over of this matter on behalf of Mr. Chaitanya Mukherjee, learned Advocate for the petitioner in this case, as instructed by his clerk. I waited for the Counsel for Appellant for half an hour. Nobody has come. Mr. Sandip Ghoshal appears for the opposite party No. 1.

3. This appeal is directed against the judgment and order of acquittal dated 24.9.93 passed in favour of opposite parties by 15th Court of Metropolitan Magistrate, Calcutta, presided over by N. Mondal. The case had been started against Smt. Arati Poddar by the present appellant Shibu Chakraborty on a complaint of an offence under section 138 of the Negotiable Instruments Act, which had been committed by the opposite party no. 1 in so far as she issued an Account Payee Cheque of Rs. 25,000/- (Rupees Twenty-five thousand only) on 15.12.1989 in favour of the complainant/appellant, for consideration. The cheque, when presented, was dishonoured, twice. It was a cheque drawn on United Bank of India, Sealdah Branch, Calcutta, and had been presented twice by petitioner through his banker Allahabad Bank, Beadon Street Branch, Calcutta. The appellant sent a demand notice dated 29.1.90 to the opposite party by registered post with acknowledgement due on 30th January, 1990 at her address. The AID was not returned. It was alleged that there were presumptions of service of notice on the opposite party by 6th February, night. She did not pay and so offence was committed by non-payment of money on 21st February, night. The complaint dated 1st March, 1990 was filed by the appellant for offence under section 138 of the Negotiable Instruments Act.

4. After appearance of the respondent/opposite party and trial of the case the learned Magistrate, by impugned order, acquitted the accused/opposite party no. 1 on the ground that notice of demand was not proved to have been served on the opposite party no. 1.

5. The appellant has approached this Court with prayer for Special Leave to appeal on the ground that notice is proved. The Special leave was already granted by order dated 9.12.93.

6. I have gone through the records. The learned Magistrate had noticed that a postal receipt of sending a registered letter to Arati has been proved on record. The address on that receipt is 6, Manindra Mitra Road, Calcutta. The appellant appeared as the one witness as the complainant and stated that Arati Poddar looked after the business of her husband which is situated at 6, Manindra Mitra Road, Calcutta. He also stated that a lawyer's letter was sent to him by postal receipt, exhibit 2. The existence of the lawyer's letter has not been proved on record. The complainant stated in cross-examination that he could not say if Arati Poddar received the lawyer's letter. In further Cross-examination he admitted that Arati Poddar does not reside at 6, Manindra Mitra Road, Calcutta. She resides at the address of her husband at 9/22, New C. I. T. Building, Beliaghata.

7. About the demand notice was sent at 6, Manindra Mitra Road, no AID was received back. No registered letter sent at 69/22, New C.I.T. Building, Beliaghata. Of course, the registered letter which was sent by postal receipt exhibit 2, was not returned. We do not know what it was. It was the duty of the complainant to prove that it was the demand notice. Its copy, therefore, had to be proved on record. This has not been done. The presumption that a registered letter was delivered at its address to the addressee, arises only if the address is correct. If there is possibility of the address being not correct this presumption stand rebutted. In this case the complainant admits that the residential address of the opposite party no. 1 was not what was recorded on the notice. So the presumption whi