Sufficient service of notice on the accused, even if the accused avoids service, constitutes valid notice for maintaining a complaint under Section 138 of the Negotiable Instruments Act.

1. This revision, filed under Section 397 read with Section 401 of Code of Criminal Procedure, 1973, is directed against the judgment and order dated 07. 07. 2000, passed by Session Judge, Udham Singh Nagar, in Criminal Revi sion No. 2153/2000 whereby the Said court allowed the revision filed by the accused / respondent no. 2 Mahendra Kumar Agarwal, setting aside the order dated 01. 08. 1998, passed by Additional Chief Judicial Magistrate, Kashipur, re jecting the objection / protest petition of the accused in Criminal Complaint Case No. 692 of 1997, relating to offence pun ishable under Section 138 of Negotiable Instruments Act, 1881.

2. Heard learned counsel for the parties.

3. Brief facts of the case are that a criminal complaint (Case No. 692 of 1997) was filed by the present revision- " ist Ashok Kumar Agarwal against ac cused / respondent no. 2 Mahendra Kumar Agarwal alleging that accused Mahendra Kumar Agarwal, Smt. Uma Agarwal and Darpan Agarwal, who are members of the same family running a partnership business in the name and style of M/s Agarwal Auto Traders. Com plainant had good relations with said family and the accused Mahendra Kumar Agarwal sought a financial as sistance for the business of the aforesaid firm, and received a loan of Rs. 2,40,000/- through cheque no. 007311, dated 04. 09. 1996. The accused had promised to pay back the said loan within a pe riod of six months. When asked for re payment of loan accused Mahendra Kumar Agarwal issued a cheque no. 599537 dated 28. 02. 1997 for a sum of Rs. 2,40,000/ -. But when the complain ant presented the cheque before the Bank it was returned on 12. 03. 1997 by the Bank with the report that in the account of the drawer sufficient amount . is not available. On this complainant tried to contact the accused, but he avoided to meet. On this complainant got sent a registered notice through his Advocate Rishi Kumar Agarwal and also got sent one under certificate of posting on 17. 03. 1997. The notices through reg istered post were sent to the accused on his permanent Pusiness address of Kashipur and also on his temporary resi dential address of New Delhi. Accused got the notices returned from Kashipur with the endorsement that for a long pe riod the addressee is out (even though the firm was doing its business at Kashipur ). The notices issued on New Delhi address were got sent back with the endorsement that addressee not met. However, notices sent by certifi cate of posting were not received back and as such it can be presumed that the same were received by the addressee. Again on 05. 0 4. 1997 another notice was also sent to the accused but he re fused to accept the same. No payment was made within 15 days of receipt of notice by the accused. On this criminal complaint was filed by the complainant (present revisionist), who got recorded his statement under Section 200 Cr. P. C. and also filed the documents including the original cheque dated 28. 02. 1997, information dated 12. 03. 1997 received from the Bank and copy of the notices sent to the accused. The Additional Chief Judicial Magistrate, Kashipur, took the cognizance on the complaint filed by the complainant and summoned the four accused, namely, 1. M/s Agarwal Auto Traders through its partner Mahendra Kumar Agarwal, 2. Mahendra Kumar Agarwal, J. Uma Agarwal and 4. Darpan Agarwal, for allegedly commit ting offence punishable under Section 138 of Negotiable Instruments Act, 1881. The said order was passed by the Magistrate on 08. 05. 1997.

4. It appears that the accused filed objections on 16. 04. 1998 to the crimi nal complaint challenging the maintainability of the criminal complaint and praying for setting aside the order summoning the accused. After hearing the parties, the Additional Chief Judicial Magistrate, Kashipur, before whom crimi nal complaint was pending dismissed the objections vide his order dated 01. 08. 1998. Aggrieved by said order, Criminal Revision No. 63 of 2000 was file