ORDER: This revision is directed against the judgment dated 23rd November, 2001 of the Sessions Judge, Thiruvananthapuram in Criminal Appeal No. 167 of 2000. The case arose on complaint filed by the first respondent herein against the petitioner before the J.F.C.M. I, Attingal alleging the commission of the offence punishable under Sec. 138 of the Negotiable Instruments Act. The allegation is that on 15th October, 1996 the petitioner borrowed a sum of Rs.4 lakhs from the first respondent and issued a cheque for the said amount drawn on the State Bank of Venjaramoodu. When the cheque was presented for encashment it was returned dishonoured with the endorsement, funds insufficient. Thereupon the first respondent issued a notice calling upon the petitioner to pay the amount covered by the dishonoured cheque. Since no payment was made pursuant to the notice, the complaint was filed.

2. The petitioner pleaded not guilty. In order to prove the guilt of the petitioner P.W. 1 to P.W. 3 were examined and Exs.P-1 to P-10 were marked. The defence examined 3 witnesses as D.W. 1 to D.W. 3 and marked Exs.D-1 to D-5. On an elaborate consideration of the evidence, the learned Magistrate found the petitioner guilty of the offence, convicted him, and sentenced him to undergo simple imprisonment for one year. Aggrieved by the order of conviction and sentence passed by the Magistrate, the petitioner preferred Criminal Appeal No. 167 of 2000 before the Sessions Judge, Trivandrum and the learned Sessions Judge by the impugned Judgment confirmed the conviction and sentence. Hence, this revision.

3. The learned counsel for the petitioner strongly contended that the Courts below should have found that there was no proper notice as envisaged in Clause (b) of the proviso to Sec. 138 of the Negotiable Instruments Act and therefore the petitioner is not guilty of the offence punishable under Sec. 138 of the Negotiable Instruments Act. According to the learned counsel, the Courts below have not properly scanned or weighed the evidence in the case. On the other hand the learned counsel for the first respondent supported the impugned orders and urged that there is no ground for interference.

4. The only question arising for consideration in the case is whether there was a proper notice as envisaged in Clause (b) of the proviso to Sec. 138 of the Negotiable Instruments Act. Clauses (b) and (c) of Sec. 138 of the Negotiable Instruments Act lays down the conditions pertaining to the notice to be given to the drawer. The said clauses are extracted below:

Clause (b): The payee or the holder in due course of the cheque, as the case may be, makes a demand for the payment of the said amount of money by giving a notice in writing to the drawer of the cheque, within fifteen days of the receipt of information by him from the bank regarding the return of the cheque as unpaid.

Clause (c): The drawer of such cheque fails to make the payment of the said amount of money to the payee or as the case may to the holder in due course of the cheque within 15 days of the receipt of the said notice.

5. In this case the definite case of the first respondent is that he issued Ex.P-6 notice to the petitioner before the initiation of the proceedings and the petitioner received the notice. But the petitioner would contend that the address in Ex.P-6 is not his correct address and he has not received the notice. Ex.P-6 notice was sent in the following address:

K. Suresh Kumar, S/o. Krishna Pillai, Chempakassery House, Chemboor, Mudakkal, P.O.

6. It is also gatherable from Ex.P-6 that the postman has made the following endorsement on 26th November, 1996 “intimation”. Subsequently on the failure of the addressee to receive the same. Ex.P-6 was returned to the sender as unclaimed. Thus the notice was returned asunclaimed and not returned as refused. A notice returned as unclaimed can be presumed to have been served on the addressee if it is sent in the correct address. It has been held by the Suprem

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