The main legal point established in the judgment is the importance of serving a legal notice at the correct address and the presumption of service when the notice is sent by registered post with the correct address of the drawer written on it.

JUDGMENT

Vinod S. Bhardwaj, J. - The instant appeal has been preferred against the judgment dated 02.07.2013 passed by the Judicial Magistrate Ist Class, Gurugram, whereby respondent-accused has been acquitted of the notice of accusation served upon him.

2. The brief facts leading to the filing of the instant appeal are that the respondent-accused is alleged to have borrowed a sum of Rs.17,45,000/-from the appellant-complainant in the month of July 2010. In order to discharge the said legal liability, the respondent-accused is alleged to have issued a cheque bearing No.540695 dated 13.12.2010 amounting to Rs.17,45,000/- in favour of the appellant-complainant drawn at Punjab National Bank, New Delhi. Upon presentation of the said cheque by the appellant-complainant for encashment with his banker, the same was returned unpaid on 03.03.2011 with the endorsement 'refer to drawer'. Thereafter, a legal notice dated 17.03.2011 was sent through advocate, however, the same was returned with the endorsement 'receiver is not residing at this address.' It is contended that the legal notice was sent through registered post to the address of the respondent-accused as mentioned in the Driving Licence as well as Voter I.D. Card of the respondent-accused. It is also pointed out that the said address is also reflected in a sale deed dated 04.01.2008, which was executed between Rajinder Pal Singh (appellant-complainant herein) and Sanjeev Sharma (respondentaccused herein). It is submitted that the proceedings were instituted against the respondent-accused before the Judicial Magistrate Ist Class, Gurugram, however, vide judgment dated 02.07.2013, the respondent-accused was acquitted of the notice of accusation served upon him. Hence, the present appeal.

3. Learned counsel appearing on behalf of the appellant-complainant has argued that the judgment passed by the Judicial Magistrate Ist Class, Gurugram suffers from infirmity inasmuch as the offence in question stood legally established and that the address in question was duly reflected in various documents of the respondent-accused i.e. Driving Licence and Voter I.D. Card. The address of the respondent-accused is also mentioned in the sale deed executed between the parties. The same address was mentioned in the legal notice as well as in the complaint.

4. Per contra, the learned counsel appearing on behalf of the respondent- accused submits that there is no illegality in the judgment passed by the Judicial Magistrate Ist Class, Gurugram and that the initiation of the proceedings under Section 138 of the Negotiable Instruments Act, 1881 commences after the issuance of the legal notice claiming a demand of payment. The cause of action would accrue in favour of the appellant-complainant to institute a complaint only when a notice is served upon the correct address of the accused. A wrong address was deliberately mentioned in the legal notice, which was never served upon the respondent-accused. Resultantly, no cognizance of the complaint under Negotiable Instruments Act could have been taken by the Court.

5. I have heard and considered the respective arguments advanced by the learned counsel for the parties.

6. For the purpose of making a case under Section 138 of the Negotiable Instruments Act, 1881, the following ingredients are required to be satisfied:

(i) A person must have drawn a cheque on an account maintained by him in a bank for payment of a certain amount of money to another person from out of that account for the discharge of any debt or other liability;

(ii) That cheque has been presented to the bank within a period of six months from the date on which it is drawn or within the period of its validity, whichever is earlier;

(iii) That cheque is returned by the bank unpaid, either because the amount of money standing to the credit of the account is insufficient to honour the cheque or that it exceeds the amount arranged to be paid from that account by an agreement made with the bank;

(iv) The payee