The sufficiency of averments in the complaint regarding the service of notice under Section 138 of the Negotiable Instruments Act, 1881 is a question of fact to be determined at the trial, and the rebuttable presumption under Section 27 of the General Clauses Act, 1897 regarding the service of notice applies.

By making this application under Section 482, Cr. P. C. the petitioner, who is the accused in Complaint Case No. 45949/2006, has sought for, inter alia, setting aside the order, dated 26-5-2006, whereby the learned Judicial Magistrate 1st Class, Guwahati, Kamrup, has taken cognizance of offence under Section 138 of the Negotiable Instruments Act, 1881 (in short, 'the NI Act'), and directed issuance of process against the petitioner as accused.

2. I have heard Mrs. A. Sharma, learned counsel for the accused petitioner, and Mr. K. Bhattacharjee, learned counsel for the complainant opposite party.

3. Before I turn to the sustainability of the present petition, it is pertinent to take note of the facts, which have led to the passing of the impugned order, dated 26-5-2006.

4. The opposite party herein lodged, as complainant, a complaint which gave rise to CR Case No. 45949/2006 aforementioned. The case of the complainant, in brief, is thus : The accused issued a cheque dated 17-3-2006, for a sum of Rs. 5 lakhs, drawn in favour of the complainant at the State Bank of India, Guwahati Branch, in discharge of the loan amount, which the accused had taken from the complainant. The complainant presented the cheque for payment on 2-4-2006, but the cheque was returned by the Bank, on 13-4-2006, informing the complainant to the effect, inter alia, that the cheque had been dishonoured on the ground of insufficiency of fund. The complainant served a notice through registered post on 24-4-2006, upon the accused demanding from him payment of Rs. 5 lakhs by cash or by draft within a period of 15 days from the date of service of the notice by the accused. Though the notice was so issued by registered post at the correct address of the accused, the accused failed /neglected to make payment of the said amount of Rs. 5 lakhs and has committed thereby an offence punishable under Section 138 of the NI Act.

5. Based on the complaint aforementioned and the statement of the complainant recorded under Section 200, Cr. P. C. the learned Court below passed the order, dated 26-5-2006, aforementioned, whereby it took cognizance of offence and directed issuance of process as indicated hereinabove.

6. Assailing the impugned order, Ms. Sharma, learned counsel for the accused petitioner, has submitted that no notice was ever received by or served upon, the accused informing her about the dishonour of the said cheque and demanding payment of the said sum of Rs. 5 lakhs. This apart, contends Ms. Sharma, there is no material on record to show that the accused petitioner had been served with notice as is statutorily required to be served, in terms of Section 138 of the NI Act, on the person, whose prosecution is sought on the ground of dishonour of cheque for insufficiency of fund. Support for the submissions, so made, is sought to be derived by Mrs. Sharma by referring the cases of SIL Import, USA v. Exim Aides Silk Exporters, Bangalore, reported in (1999)4 SCC 567 : (1999 Cri LJ 2276) and Dalmia Cement (Bharat) Ltd. v. Galaxy Traders and Agencies Ltd. and others reported in (2001) 6 SCC 463 : (2001 Cri LJ 972).

7. Appearing on behalf of the complainant opposite party, Mr. K. Bhattacharjee, learned counsel, points out that in the complaint, in question, the complainant has clearly stated that a notice of demand was sent on 24-4-2006 and the same stands served on the accused. In such circumstances, according to Mr. Bhattacharjee, until the time the contrary is shown, the presumption, under the law, would be that notice stands served on the accused petitioner. It is further submitted by Mr. Bhattacharjee that even after service of summons, it was open to the accused petitioner to make payment of the amount aforementioned within a period of 15 days from the date of service of summons, but as the petitioner has made no such payment, his prosecution under Section 138 is wholly consistent with the scheme of Section 138, N. I. Act. In support of his submissions, Mr. Bhat