The central legal point established in the judgment is the requirement for actual receipt of notice and communication of the fact of dishonoring of the cheque to the accused for the service of notice under Section 138 of the Negotiable Instruments Act.

This Criminal Original Petition is filed to quash the proceedings in CC.No.10/2005 on the file of the learned Judicial Magistrate, Tiruttani.

2. The impugned proceedings were initiated against the Petitioner, alleging that when the cheque bearing No.282873 dated 5. 2004 for Rs.1,00,000/- drawn on Bank of India, Sowcarpet, Madras issued by the Petitioner to discharge the part satisfaction of the total due, has been presented by the Respondent through Indian Bank, Podhaturpet on 110. 2004, it was returned by the Bank of India as "Account Closed" with a return memo stating that the account has been closed.

3. On 110. 2004, the return memo along with the said cheque was handed over by the complainants Banker to the complainant on 110. 2004 at Podhaturpet. The complainant had sent a registered notice dated 30.10.2004 and registered on 11. 2004 to the Petitioner and it is alleged that the same had been returned, as the Petitioner was not found in the address at No.4, Bajanai Koil Street, Choolaimedu, Nungambakkam, Chennai-94.

4. Mr.P.K.Rajagopal, the learned counsel for the Petitioner submitted that the Petitioner did not have the bank account alive on the date of the alleged issuance of the cheque i.e. on 5. 2004 and the blank cheque issued by him to one Subramanian and his wife as security for the promissory notes had been misused as the impugned cheque.

5. The main contention of the learned counsel for the Petitioner is that the Petitioner never resided at the address at No.4, Bajanai Koil Street, Choolaimedu, Nungambakkam, Chennai-94 either on 5. 2004 or thereafter till today and he is continuously residing at Old No.11, New No.10, Raghavan Street, Nungambakkam, Choolaimedu, Chennai-94 from June 1994.

6. The learned counsel for the Petitioner would submit that the statutory notice under Section 138 of the Negotiable Instruments Act (herein after referred to as the Act) was not served on the Petitioner and the same has been sent to an address, wherein the Petitioner never resided. In fact, the summons from the court after the complaint was taken on file has been served on him only to the address at Old No.11, New No.10, Ragavan Street, Nungambakkam, Choolaimedu, Chennai.

7. The learned counsel for the Petitioner relied on the decision of this court rendered in the case of R.M.Sundram Vs. C.M.Ramraj [1994-1-LW-Crl-369], wherein it was held that when the statutory notice sent to the accused by registered post returned with an endorsement "not found" the complaint filed is without compliance of the requirement as to "receipt of notice" by the accused under sub section (c). It held thus:-

"Sub section(c) thereof further provides that the drawer has to comply with the demand within 15 days of the receipt of the said notice. Only if the demand is not complied with, within the time so specified the cause of action accrues for lodging of a complaint within a period of one month, as contemplated by sub section (b) of the S.142 of the Act. For determining the period of one month, the actual receipt of the notice, as contemplated under sub section(C) of S.138 is necessary and without such information, limitation, provided for the launching of Prosecution under sub section (b) of Section 142 cannot at all be determined.

Sub section(c) of S.138 does not at all contemplate any constructive notice. If constructive notice has been contemplated under the said sub section by the Legislature, sufficient phraseology would have been utilised for such a purpose. The language used therein, namely, receipt of a said notice, unambiguously points out actual receipt of notice.

In the case on hand notice issued had not been actually served, but it had been returned with a postal endorsement as not found. Such being the case, it cannot at all be stated that the provisions of sub section(c) of the said section had been duly complied with and the non compliance of the said provision is sufficient enough for the prosecution to be thrown back, lock,