( 1 ) THE short question that falls for determination is whether petitioner s demand notice was served on respondent and whether trial Court had wrongly or rightly dismissed his complaint u/s 138 of Negotiable Instrument Act for non-service of this notice.

( 2 ) PETITIONER filed a complaint No. 13/99 before ACMM u/s 138 of Negotiable instrument Act complaining of dishonouring of cheque No. 538722 dated 7. 8. 1996 for Rs. 1. 54 lacs executed by respondent. Side-tracking other issues, trial Court converged on the issue of service of demand notice and held that the requisite notice was served on the respondent was dismissed petitioner s complaint for this. It held :- "cw-3 in his examination in chief has stated to the following effect with respect to service aspect: "the said notice sent through Speed Post, Regd. Post and UPC. . . . . . . . . " in cross-examination, this witness stated as follows:

"i did not receive any AD card or information regarding service of notice upon Mr. Ashwani Kumar from my counsel Sh. Moitra in the form of any document including AD card. "from the above statement, it can be safely inferred that it was not the complainant who had posted the notice through speed post, regd. post as well as UPC and hence, service of notice has not been proved. It was the bounden duty of the complainant to examine either the counsel Mr. Moitra or his clerk who was the best witness to prove the service aspect. It has not been so done and so the constructive presumption in favour of the complainant regarding service having been effected upon the accused, cannot be drawn. Complainant has neither stated nor he could have stated to the effect that what was the fate of the regd. letter, speed post or UPC. Had it been proved on record that the regd. letter, speed post, UPC envelope were not received back then the presumption regarding service of notice might have been drawn in favour of the complainant. In view of the above facts, possibility of the notice not even being posted or being sent at the address other mentioned of the accused, cannot be ruled out. Another reason which goes against the complainant is that accused has disputed the service of notice. It is well settled that the presumption regarding service in case of postal articles stated to have been sent by the complainant, is a rebuttable presumption. In case, the accused disputes the service of notice, onus shifts on the complainant to examine the postal officials or the person who posted the letters. In this case, it has not been so done. "

( 3 ) PETITIONER assails the trial Court judgment/findings on the ground that demand notice of respondent was served through registered post and postal certificate, original receipts whereof were placed on record and formed Ex. AW-1/10, aw-1/11 and AW-1/12. But trial Court had overtooked and discarded all these clutching to petitioner s statement that he had not received the AD card from the office of his counsel. The adverse presumption drawn, therefore, is said to be untenable and the trial Court finding contrary to record.

( 4 ) RELIANCE in support is placed on two Supreme Court Judgments in K. Bhaskaranv. Sankaran Vaidyan Baton, 1999 VIII AD (SC) 417 and M/s. Dalmia cement (Bharat) Ltd. v. M/s Galaxy Traders and Agencies Ltd. , 2001 (1) AD (SC) 409 and a Judgment of this Court in Jain Associates v. Deepak Chaudhary and Co. , 80 (1999) DLT 664.

( 5 ) THE stand of respondent, on the other hand, is that presumption drawable on service of notice by registered post was rebuttable one and once he had denied the receipt of notice, it was for the petitioner to prove it on all force. But since he had failed to do so, trial Court had rightly dismissed his complaint for non-service of notice and its order was justified.

( 6 ) SECTION 138 of the Act makes it an offence where any cheque drawn by a person on any account maintained by him in a bank for payment of any amount to other person is returned unpaid by the bank for insuff