P.D. Rajan, J.

This revision petition is preferred by the accused against the judgment in Criminal Appeal No.360 of 2005 of the Additional Sessions Judge, Adhoc-I, Thalassery. Revision petitioner was the accused in S.T.C. No.1618 of 2003 of the Judicial First Class Magistrate Court, Mattannur which was filed under Section 138 of the Negotiable Instruments Act ("NI Act" for short). The learned Magistrate convicted the accused under Section 138 of the NI Act and sentenced to simple imprisonment for six months and compensation of Rs. 40,000/- under Section 357(3) Cr.P.C. in default, simple imprisonment for three months. Against that, the accused preferred the above criminal appeal, where the learned Additional Sessions Judge modified the sentence to imprisonment till rising of the court and compensation of Rs. 60,000/-, in default simple imprisonment for three months.

2. The complainant's case in the trial court was that the accused borrowed a sum of Rs. 40,000/- from him and in discharge of that liability he issued Ext. P1 cheque. When Ext. P1 was presented for encashment, it was dishonoured for the reason of funds insufficient. The complainant demanded the due amount by giving a notice in writing, but it was returned as "addressee left India". During trial, the complainant was examined as PW1 and his documents were marked as Exts.P1 to P6. Incriminating circumstances brought out in evidence were denied by the accused while questioning him. He examined DW1 and DW2 and marked Exts.D1 to D5 in support of his defence.

3. Learned counsel appearing for the revision petitioner submitted that there was no service of notice as stated under Section 138(b) of the NI Act. The complainant, in his evidence, admitted that the revision petitioner was working abroad when Ext.P4 notice was issued to the accused. The cause of action under Section 138 of the NI Act arises only after service of notice. When there was no notice under Section 138(b) of the NI Act, the Magistrate erred in taking cognizance of the offence.

4. In the instant case, it is true that the legal notice issued to the accused was returned unserved with endorsement "addressee left India". The notice under Section 138(b) of the NI Act had been issued in the residential address given to the complainant. Learned Magistrate, in his judgment, observed that "both side admitted that accused was abroad at the time of issuance of notice". However, both courts below came to a conclusion that when notice was issued in the correct residential address of the accused, he intentionally evaded from the receipt of notice, it is presumed that notice may be deemed to have been served. The requirement of giving notice is mandatory for maintaining a complaint, but there is no procedure prescribed under Section 138 of the NI Act for serving notice on the accused. Notice means notice in writing and not a verbal demand to the drawer. Apex court in K. Bhaskaran v. Sankaran Vaidhyan Balan, (1999) 7 SCC 510 held that once notice has been sent by a registered post with acknowledgment due in the correct address, it must be presumed that the service has been made effective. In V. Rajakumari v. P. Subbarama Naidu (2004) 8 Supreme 774 it was held that statutory notice under Section 138(b) of the NI Act sent in the correct address of the drawer but returned with endorsement must be presumed to be served on the drawer and the burden to show that accused/drawer had managed to get an incorrect postal acknowledgment letter on the complainant have to be considered during trial and on the background facts of the case.

5. The provision under Section 138 of the NI Act shows that where a cheque issued by a drawer in discharge of any debt or liability, in whole or in part, is returned by the bank unpaid, because of the amount of money standing to the credit of that account is insufficient to honour the cheque or that it exceeds the amount arranged to be paid from that account, such person shall be deemed to have commit