1. The complainant is in appeal. His complaint filed under section 138 r/w 142 of Negotiable Instruments Act ended in acquittal under section 255(1) of Cr.P.C. The case of the prosecution is that the accused owed an amount of Rs.60,000/- and to discharge that debt Ext.P2 cheque dated 18.03.2004 was issued. When presented for encashment, it was dishonoured on the ground of insufficiency of funds. On receipt of the dishonour memo, statutory notice was sent by registered post on 12.4.2004. The registered postal cover was returned 'unclaimed'. That returned postal cover, Ext.P5, was delivered to the complainant only on 27.04.2004. The complaint was filed on 03.06.2004. The court below found that the period should be reckoned from 15.04.2004 itself which was the date on which the notice was stated to have been refused or unclaimed by the addressee. Accepting that contention, the learned Magistrate acquitted the accused under section 255(1) of Cr.P.C.

2. The short, but important question that arises in this case is whether the period prescribed for filing complaint under section 142 of Negotiable Instruments Act should commence from 15.4.2004 - the date on which the notice was refused or left unclaimed; or whether it should commence from 27.4.2004 -the date on which the refusal was notified by delivering the returned postal cover.

3. Exhibit P5, the returned postal cover shows that the postman served an intimation on 15.4.2004 so as to enable the addressee to collect the postal articles registered in his name. According to the accused, since the notice was ultimately returned unserved, it must be presumed that the addressee refused to receive the notice on 15.4.2004 itself and hence that date should be reckoned as the date from which period of 15 days for effecting payment of the cheque amount to the complainant should be computed.

4. That contention, according to the complainant, is fallacious since the complainant can come to know as to the date on which the notice was unclaimed by the accused/addressee only when the returned postal cover is delivered to the sender of the notice. Most often the endorsement made by the postman may not be so legible so as to enable the sender to decipher therefrom the exact date on which the notice was refused by the addressee. There may also be instances when such postal articles are misplaced or otherwise retained or kept inadvertently in the post office itself and reach the hands of the sender of the notice only after 2 or 3 weeks.

5. What the provision requires is that the payee has to make a demand by giving notice in writing. The offence would be complete only if the drawer fails to pay the cheque amount within 15 days of the receipt of the said notice. If that be so, the material and relevant date for accrual of cause of action would be the expiry of the period, as aforesaid, from the date of receipt of the notice by the drawer. But at the same time it cannot be forgotten that the complainant being the sender of the notice cannot be asked to go to the post office of the addressee/destination on all days to know the actual date of service or refusal of the notice by the addressee. That date of deemed service, will not invariably be known to the sender of the notice. The knowledge of such refusal or returning of the notice as unclaimed can be imputed to the sender only when he gets the returned postal cover.

6. The contention raised by the accused is that the date of deemed service, should be taken as the date when the postman made the endorsement, that the addressee refused or returned unclaimed. If that view is taken then sometimes, if the postal cover is not returned to the sender within a reasonable time, it would create confusion and unnecessary hardship to the payee. Therefore, there is merit in the submission made by the learned counsel for the complainant that the expression "the date of receipt of the said notice" in proviso (c) to Section 138 of N.I. Act should receive a