ORDER: The complaint in C.C.No.69 of 1998 on the file of Judicial Magistrate, Coimbatore has preferred the revision aggrieved against the orders passed in C.M.P.No.5671 of 1998, dated 6.1.1999.

2. The case in brief is as follows:

The complainant filed a complaint under Sec.138 of the Negotiable Instruments Act against the respondent relating to dishonour of a cheque for a sum of Rs.1,30,000. The statutory notice was also sent on 3.11.1997 to the accused and after complying all the statutory formalities, the complaint was laid. The accused filed C.M.P.No.5671 of 1998 for discharge and contended that there is no valued notice and as such the complaint is not maintainable under law. After hearing the parties, the learned Magistrate allowed the application and aggrieved against this, the present revision is filed.

3. Heard the learned counsel for the parties.

4. The point that arise for consideration is whether the order passed by the Court below is proper and correct?

5.Point: There is no dispute that the petitioner/ complainant filed a complaint under Sec.138 of the Negotiable Instruments Act against the respondent relating to dishonour of a cheque for Rs.1,30,000. The cheque was returned with an endorsement ‘refer to drawer’. The complainant has sent legal notice through his counsel on 3.11.1997 to the accused’s residence as well as office. The accused filed a petition alleging that the legal notice marked as Ex.P-4 through P.W.1 was addressed only to his residence whereas the acknowledgment card marked as Ex.P-5 was addressed only to his office, which will indicate that no notice was served to he accused. Believing this contention only, the learned Magistrate came to the conclusion that there was no valid notice and allowed the discharge petition.

6. The learned counsel for the revision petitioner/ complainant contended that notice was sent not only to the residential address, but also to the office address of the accused. Ex.P-5 is the acknowledgment card filed along with the complaint itself. The evidence in the case has already been completed. The Court below went wrong in discharging the respondent on the ground that notice contemplated under Sec.138 of the Negotiable Instruments Act was not given perusal of the complaint itself indicated that Ex.P-4 copy of the legal notice has been filed along with Ex.P-5 served acknowledgment. Now the typed set of documents have also been filed by the complainant thereby indicating that the notice was sent to the two addresses and the postal receipt also has been filed to prove that the notice was sent to the two addresses. Moreover, when the evidence of the complainant has already been completed, it is just and necessary that the entire matter has to be thrashed only on the course of trial and allowing the discharge petition by the Court below is not proper and correct.

7. The learned counsel for the complainant also relied on Mahadevan Sunil Kumaran v. Bhadran, 1992 M.W.N. (Crl.) (Supp.) Ker. 1, that under Sec.94 of the Negotiable Instruments Act, the mode in which the notice of dishonour may be given is mentioned, if the notice is duly directed and sent by post but miscarried, such miscarriage does not render the notice invalid. So, merely because of the fact that the notice sent by the first respondent was not received by the petitioner it cannot be said that there was no proper service of notice. It is submitted that the first respondent produced the receipt issued by the postal authorities in Court. It is for the petitioner to prove that he had not received any notice. The prosecution now launched is not liable to be quashed for this reason. This decision is applicable to the case on hand.

8. The learned counsel placed reliance on K.Bhaskaran v. Sankaran Vaidyan, (1999)3 C.T.C. 358, a decision of the Apex Court, wherein it is stated that if a strict interpretation is given that the drawer should have actually received the notice for he period of 15 days to start running no matter that the

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