IMPORTANT POINTS:
• Even in a case where notice is returned with the endorsement “addressee left India”, it would be open to the complainant to prove at the time of the trial of the case that the endorsement is not correct and that the addressee was available in the address to which the notice was sent. It would be premature at the stage of issuance of process to decide whether service of notice was deemed to be effected or not
• The question whether notice as required under Clause (b) of the proviso to Section 138 of the Act has been served has to be decided during trial and the complaint ought not to be dismissed at the threshold on the purported ground that there was no proper service of notice
• At the time of taking cognizance of the complaint under Section 138 of the Act, the Court is required to be prima facie satisfied that mandatory statutory procedural requirements have been complied with. It is then for the drawer to rebut the presumption about the service of notice and show that he had no knowledge that the notice was brought to his address or that the address mentioned on the cover was incorrect or that the letter was never tendered or that the report of the postman was incorrect

ORDER :

Is it legal and proper to dismiss under Section 203 of the Code of Criminal Procedure, 1973 (for short 'the Code') a complaint filed for an offence under Section 138 of the Negotiable Instruments act, 1881 (hereinafter referred to as 'the Act') on the ground that the statutory notice sent to the drawer of the cheque was not served on him? This is the question which arises for consideration in this revision petition.

2. The revision petitioner is the complainant. He filed the complaint against the second respondent as Crl.M.P No. 809/2019 for the offence punishable under Section 138 of the Act. The notice sent by him to the drawer of the cheque, demanding payment of the amount of the cheque, was returned with the endorsement 'addressee left India'. The learned Magistrate dismissed the aforesaid complaint under Section 203 of the Code, holding as follows:

“Complainant filed affidavit along with the complaint and thereafter another additional affidavit also. Averments in both affidavits and complaint would go to show that notice was not served to the accused. Cause of action under Section 138(c) of the N.I Act would arise only when the drawer of the cheque fails to make the payment within 15 days of the receipt of the notice. Section 142(1) (b) of the N.I Act provides that complaint is to be made within one month of the date on which the cause of action arise under Section (c) of the proviso to Section 138 of the N.I Act. In the instant case, notice was not served to the accused and the contents of notice was not brought to the notice of accused. Notice was neither refused nor unclaimed by the accused also. So, cause of action is not arisen in this case as provided under Section 138(c) of the N.I Act. Therefore, I find there is no sufficient grounds for proceeding against the accused.”

3. The legality and propriety of the aforesaid order passed by the learned Magistrate are challenged by the complainant in this revision petition.

4. Inspite of service of notice, the second respondent/accused has not appeared. Heard the learned counsel for the revision petitioner.

5. Section 203 of the Code provides that, after considering the statements on oath (if any) of the complainant and of the witnesses and the result of the inquiry or investigation (if any) under Section 202, if the Magistrate is of opinion that there is no sufficient ground for proceeding, he shall dismiss the complaint, and in every such case he shall briefly record his reasons for so doing.

6. The question to be considered here is, whether the learned Magistrate was justified in reaching a conclusion that there was no sufficient ground for proceeding against the accused for an offence punishable under Section 138 of the Act, on the ground that the statutory notice sent by the complainant was not served on the accused and it was returned with the endorsement “addressee left India”.

7. Clause (c) of the proviso to Section 138 of the Act provides that, cause of action for filing the complaint arises when the drawer of the cheque fails to make the payment of the amount of the cheque to the payee or, as the case may be, to the holder in due course of the cheque, within fifteen days of the receipt of the notice. Section 142(1)(b) of the Act provides that, notwithstanding anything contained in the Code of Criminal Procedure, no court shall take cognizance of any offence punishable under Section 138 of the Act except upon a complaint, in writing, made by the payee or, as the case may be, the holder in due course of the cheque, within one month of the date on which the cause of action arises under clause (c) of the proviso to Section 138 of the Act.

8. 'Receipt of the notice' by the drawer of the cheque need not be actual receipt of the notice. It can also be deemed receipt. Such deemed receipt is envisaged by Section 27 of the General Clauses Act which provides for raising a presumption that service of notice has been effected when it is sent to the correct address by registere