The interpretation of notice service in S.138 involves liberal principles to protect the interests of payees against dishonest evaders.

1. Heard.

2. This revision under S.482, Cr.P.C. has been filed against the order dated 15-6-2002 passed by the First Additional Sessions Judge, Durg in Criminal Revision No. 84/2002 whereby the order dated 23-11-2001 passed by the Judicial Magistrate, Class I, Durg has been affirmed.

3. The appellant is facing prosecution under S.138 of Negotiable Instrument Act . The allegation against him is that he has issued a crossed cheque in favour of the complainant and the said cheque was sent to the Bank where on presentation, it was dishonoured on the ground that sufficient funds are not available. Notice was sent on 8-4-1999 and it was returned refused on 12-4-1999 and thereafter the complaint has been filed.

4. Learned counsel for the applicant submits that since the notice was not served, the complaint is not maintainable. The objection was raised regarding registration of the case on the ground that the notice was not served on him and it was prayed that the applicant be discharged. The learned Magistrate took the cognizance of the complaint and declined to discharge the applicant on the ground that it will be considered only after recording evidence. The applicant preferred revision where it was contended that the notice was not served. The Courts below have examined that the notice was sent and it was refused. The Courts below found that the date is put by seal and who has put the seal is matter of recording evidence. The Courts below further noted that the applicant / accused has not disputed that he has not issued the cheque. The Courts below also considered the decision reported in 2001 CriLJ 1674 : AIR 2001 SC 1315, Ashok Yashwant Badeve v. Surendra Madhav Rao Nighojakar).

5. This Court has considered the entire matter afresh.

6. Admittedly, the complaint in the present case has been filed after the cheque on its presentation was dishonoured and thereafter notice was sent to the applicant and the said notice was returned refused and the Courts below rejected the prayer for discharge of the applicant on the ground that it is the subject - matter of evidence and the prayer for discharge can only be considered after recording evidence.

7. So far as interpretation of the provisions of S.138 are concerned, the Apex Court had an occasion to deal with the matter in case of K. Bhaskaran v. Sankaran Vaidhyan Balan , reported in (1999 (7) SCC 510 : 1999 CriLJ 4606, in which it is held as under :
".......... The context envisaged in S.138 of the Act invites a liberal interpretation for the person who has the statutory obligations to give notice because he is presumed to be the loser in the transaction and it is for his interest the very provisions is made by the Legislature. The words in clause(b) of the proviso to S.138 of the Act show that the payee has the statutory obligation to 'make demand' by giving notice. The thrust in the clause is on the need to 'make demand'. It is only the mode for making such demand which the Legislature has prescribed . A payee can send the notice for doing his part for giving the notice. Once it is dispatched his part is over and the next depends on what the sendee does."

8. It was further held that : -
"If a strict interpretation is given the drawer should have actually received the notice for the period of 15 days to start running no matter that the payee sent the notice at the correct address, a trickster cheque drawer would get the premium to avoid receiving the notice by different strategies and he could escape from the legal consequences of S.138 of the Act. It must be borne in mind that the Court should not adopt an interpretation which helps a dishonest evader and clips an honest payee as that would def