1. The complainant is in appeal. The complaint was filed under Section 138 of the Negotiable Instruments Act. The accused therein was acquitted by the learned Magistrate under Section 255(1) Cr.P.C. mainly on the ground that the statutory notice sent by the complainant was not served on him. The notice was returned with an endorsement “door locked”.

2. The learned counsel for the complainant submits that though the findings on other points were entered by the learned Magistrate in favour of the complainant, based on a wrong finding regarding the notice sent the accused was acquitted. This appeal is filed challenging the verdict of acquittal.

3. It is argued by the learned counsel that even the evidence given by DW.2, the post man would show that Ext.P4 notice was taken to the house of the accused in the address shown therein. There was no case for the accused that he was not residing in the address shown in Ext.P4 notice. Even if it is accepted that the accused had left the house to some other place for a few months that is no reason to say that the statutory notice was not sent as required under the Proviso to Section 138 of N.I. Act.

4. The suggestion put to PW.1 by the accused was to the effect that from January,98 to December, 1998 the accused and his family members were not in station. Ext.P1 cheque is dated 06.02.1998. The cheque was valid for 6 months. Therefore the accused who issued the cheque was expected to know that the cheque was likely to be presented before the bank for encashment and if any notice is to be sent, that notice had to be sent in his address which was known to the complainant at the time when the transaction was entered into. There is no case for the accused that he had informed the complainant of his shifting of the residence during the period as suggested by him to PW1. What is the presumption available as to the due service of notice, when the notice was sent by registered post, is to be considered relying on the decisions in Bhaskaran V. Sankaran Vaidhyan Balan reported in 1999(3) KLT 440 and D. Vinod Sivappa v. Nanda Belliappa reported in 2006(3) KLT 94. These decisions were affirmed by the Apex Court in Alavi Haji vs. Mohammed reported in 2007 (3) KLT 77. There it was held:

“The issue with regard to interpretation of the expression giving of notice used in Clause (b) of the proviso is no more res integra. In K. Bhaskaran V. Sankaran Vaidhyan Balan and Anr., the said expression came up for interpretation. Considering the question with particular reference to scheme of S.138 of the Act, it was held that failure on the part of the drawer to pay the amount should be within fifteen days of the said notice. Giving notice in the context is not the same as receipt of notice. Giving is a process of which receipt is the accomplishment. It is for the payee to perform the former process by sending the notice to the drawer at the correct address and for the drawer to comply with Clause (c) of the proviso. Emphasizing that the provisions contained in S.138 of the Act are required to be construed liberally, it was observed thus:

If a strict interpretation is given that the drawer should have actually received the notice for the period of 15 days to start running, no matter that the payee sent the notice on the correct address, a trickster cheque drawer would get the premium to avoid receiving the notice by different strategies and he could escape from the legal consequences of S.138 of the Act. It must be borne in mind that Court should not adopt an interpretation which helps a dishonest evader and clips an honest payee as that would defeat the very legislative measure. In Maxwell’s interpretation of Statues the learned author has emphasized that “provisions relating to giving of notice should often receive liberal interpretation”. (vide page 99 of the 12th Edn.). The context envisaged in S.138 of the Act invites a liberal interpretation for the person who has the statutory obligation to give noti