By mere endorsement on postal cover "unclaimed", it cannot be presumed that service of notice is not valid.

This appeal has been preferred against the judgment in C.C.No.15 of 2000 on the file of the Judicial Magistrate, Valparai. The case had arisen out of a private complaint filed by the complainant under Section 200 of Cr.P.C., for an offence under Section 138 of the Negotiable Instruments Act against the accused. After recording the sworn statement of the complainant, the complaint was taken on file by the learned Judicial Magistrate.

.2. The averments in the complaint in brief are as follows:-

The complainant knows the accused for more than 20 years and that the accused is having business at Salakudi, Thiruchur, in Kerala State. On 20.12.1999 the accused had borrowed a sum of Rs.90,000/- and issued a cheque dated 212. 1999 drawn in favour of the complainant for a sum of Rs.90,000/- on Union Bank of India. When the cheque was presented on 03.02.2000 in Union Bank of India, the same was returned with an endorsement that there is no sufficient fund in the account of the drawer. Hence, the complaint.

3. After taking the complaint on file the learned Judicial Magistrate issued summons to the accused and on appearance of the accused, the learned Magistrate has furnished copies to the accused under Section 207 of the Cr.P.C., and when questioned, the accused pleaded not guilty. On the side of the complainant P.W.1 and P.W.2 were examined and Ex.P.1 to Ex.P.4 were marked.

4. P.W.1 in his evidence would state that he is residing at Valparai and he knows the accused while he was residing at Valparai and that at present the accused is residing in Salakudi, Kerala State, and he was a contractor in Tantea and the he knows very will of the accused and on 20.12.1999 the accused had borrowed Rs.90,000/- as hand loan and to discharge the said loan, he(accused) had drawn a cheque in Union Bank of India on 212. 1999 for a sum of Rs.90,000/-and when he presented the cheque on 2. 2000, the same was bounced on the ground that there is no sufficient funds in the account of the drawer. Ex.P.1 is the cheque issued by the accused dated 212. 1999. Ex.P.2 is the memo issued by the bank dated 4. 2000 stating the reason for the return of the cheque. Ex.P.3 is the copy of the notice sent by the complainant to the accused. Ex.P.4 is the return postal cover containing the original of Ex.P.3.

5. P.W.2 is an accountant in Union Bank of India. He would depose that the cheque bearing No.10509 was issued to the drawer by Union Bank of India and that the said cheque came to their bank for encashment on 2. 2000 and the same was returned on the ground that there is no sufficient funds in the account of the drawer. Ex.P.2 is the memo sent by Union Bank of India along with Ex.P.1 at the time of return of the same.

6. When incriminating circumstances were put to the accused he would totally deny his complicity with the crime. The accused has himself examined as D.W.1.

7. After going through the oral and documentary evidence, the learned trial judge on the ground that there was no proper notice served on the accused as required under law, has dismissed the complaint. Hence, this appeal by the complainant.

8. Now the point for determination in this appeal is whether the judgment in C.C.No.15 of 2000 on the file of the Judicial Magistrate, Valpari on the sole ground of improper service of notice, is liable to be set aside for the reasons stated in the memorandum of appeal?

9. The Point:-

9(a) The learned trial Judge relying on the decision reported in 1993 Criminal Law Journal 2196, held that the endorsement on the return postal cover containing the original notice as unclaimed will not be construed as valid service of notice and on that sole ground has held that the complainant is not entitled to the relief asked for in the complaint under Section 138 of the Negotiable Instruments Act and accordingly dismissed the complaint.

9(b) The learned counsel for the appellant relying on 1999 (7) SCC 510 (K.Bhaskaran Vs. Sankaran Vaidhyan Balan and Another), and con