ORDER
C.Y. Somayajulu, J.
1. First respondent filed a private complaint against the petitioner alleging that for a debt due to it in connection with the cotton business transactions between it and the petitioner, petitioner issued a cheque dated 14.8.2002 for Rs. 7,00,000/- drawn on Bank of India, Guntur, which, on presentation for payment, was returned with a memo dated 7.1.2003 that the amount covered by the cheque exceeds the arrangements made, and so it got issued a statutory notice dated 20.1.2003 to the petitioner about return of the cheque and demanding payment of the amount covered by the cheque, but the same was returned un-served and so the petitioner is liable for punishment under Section 138 of the Negotiable Instruments Act, 1881 (the Act). The learned Magistrate took cognizance of the offence. This petition is filed to quash the said proceedings.
2. The contention of the learned Counsel for petitioner is that even if all the allegations in the petition are taken to be true, there is no cause of action for filing the complaint, since the statutory notice, admittedly, was not served on the petitioner, because the specific allegation in the complaint is that the notice was “returned without service”. He strongly relied on R.M. Sundaram v. C.M. Ramraj, 1993(3) Crimes 175; Shashi Finance Corporation v. Super Shine Abrasives (P) Ltd., Hyderabad and Ors., II (2004) BC 172=2003(2) ALD (CRL). 634 (AP), and Shakti Travel and Tours v. State of Bihar and Anr., IV (2000) CCR 121 (SC)=VII (2000) SLT 319=2000(7) Supreme 90, in support of his said contention. He further contended that the petitioner, after receiving summons in the case, got inquiries made at the Begumpet Post Office, which delivers the mail in Ameerpet areas also, and came to know that the registered notice allegedly sent by the first respondent was not received in that post office, and that the Sub-post Master, Begumpet, at the request of the petitioner, issued a certificate to that effect, and so it is clear that first respondent must have managed to get a false endorsement on the registered letter that the addressee is not found. His next contention is that the proprietor of the first respondent who is a close relative of the petitioner is inimically disposed towards the petitioner, has been trying to implicate her in civil and criminal litigation and so, he after coining to know that some blank cheques, containing the signatures of the petitioner, were lost, must have managed to catch hold of some of the cheques and filed the complaint against the petitioner after managing with the postal authorities must have got an endorsement made that the addressee is not found. Learned Counsel for the first respondent relying on V. Satyanarayana v. A.P. Travel and Tourism Development Ltd., Secunderabad and Anr., I (1999) BC 8= 1997(2) ALT (Crl.) 1 (AP), contends that since the notice was sent to the address known though the notice was returned unserved with an endorsement that the addressee was not found, in view of Section 27 of General Clauses Act, 1897, it should be deemed that, the notice was duly served and so question of quashing the complaint does not arise.
3. Before considering the merits of the contentions raised by the learned Counsel for petitioner, I feel it relevant to Section 138 of the Act, which lays down the conditions precedent for filing a complaint under that section. It reads:
“Dishonour of cheque for insufficiency, etc. of funds in the account–Where any cheque drawn by a person on an account maintained by him with a Banker for payment of any amount of money to another person from out of that account for the discharge, in whole or in part, of any debt or other liability, is returned by the Bank unpaid, either because of the amount of money standing to the credit of that 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 that Bank, such person shall be deemed to have committed on offence and shall, without prejudice to any other provision of this Act, be punished with imprisonment for a term which may extend to one year, or with fine which may extend to twice the amount of the cheque, or with both:
Provided that nothing contained in this section shall apply unless–
(a) the 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;
(b) the payee or the holder in due course of the cheque, as the case may be, makes a demand for the payment of the said amount of money by giving a notice in writing, to the drawer of the cheque, within fifteen days of the receipt of information by him from the Bank regarding the return of the cheque as unpaid; and
(c) the drawer of such fails to make the payment of the said amount of money to the payee or as the case may be, to the holder in due course of the cheque within fifteen days of the receipt of the said notice.”
From Clause (b) of the proviso to Section 138 of the Act extracted above, it is clear that a demand for payment of amount ‘by giving a notice in writing’ to the drawer of the cheque, within 15 days of receipt of the information by the payee or holder in due course, from the Bank, regarding return of the cheque as unpaid and waiting for 15 days from the date of service of notice, as contemplated by Clause (c) are the sine qua non for initiating the action under that section. Clause (b) of the proviso to Section 138 of the Act does not mandate that notice should be sent by ‘registered post’ with or without ‘acknowledgement due’. So, if the payee or the holder in due course sends a notice in writing, informing the drawer of the dishonoured cheque about the factum of dishonour and demanding payment of the amount covered by the dishonoured cheque it would be sufficient compliance with Clause (b) of the proviso to Section 138 of the Act. It is more with a view to show proof of sending notice to the drawer of the dishonoured cheque such notice would usually be sent by registered post and/or after obtaining a certificate of posting, more so because if a letter is sent by registered post presumption under Section 27 of the General Clauses Act, 1897, would he available. If a notice is sent by ordinary post to the correct address of the drawer of the cheque a presumption can be drawn that it is received by the addressee. The period of 15 days waiting contemplated by Clause (c) can be reckoned from the date on which the letter would normally have been received by the addressee.
4. In Madan and Co. v. Wazir Jaivir Chand, the Apex Court had an occasion to consider Section 27 of General Clauses Act, 1897, and Clause (i) of Section 11(1) read with proviso to Section 12(b) of the J and K Houses and Shops Rent Control Act (34 of 1966) which is similar to Clause (b) of the proviso to Section 138 of the Act and observed as follows:
“The proviso insists that before any amount of rent can be said to be in arrears, a notice has to be served through post. All that a landlord can to comply with this provision is to post a prepaid registered letter (acknowledgement due or otherwise) containing the tenant’s correct address. Once he does this and the letter is delivered to the post office, he has no control over it. It is then presumed to have been delivered to the addressee under Section 27 of the General Clauses Act. Under the rules of the post office, the letter is to be delivered to the addressee or a person authorised by him. Such a person may either accept the letter or decline to accept it. In either case, there is no difficulty, for the acceptance or refusal can be treated as a service on and receipt by, the addressee. The difficulty is where the postman calls at the address mentioned and is unable to contact the addressee or a person authorised to receive the letter. All that he can then do is to return it to the sender. The Indian Post Office Rules do not prescribe any detailed procedure regarding the delivery of such registered letters. When the postman is unable to deliver it on his first visit, the general practice is for the postman to attempt to deliver it on the next one or two days also before returning it to the sender. However, he has neither the power nor the time to make inquiries regarding the whereabouts of the addressee; he is not expected to detain the letter until the addressee chooses to return and accept it; and he is not authorised to affix the letter on the premises because of the assessee’s absence. His responsibilities cannot, therefore, be equated to those of a process server entrusted with the responsibilities of serving the summons of a Court under O. V. of the C.P.C. The statutory provision has to be interpreted in the context of this difficulty and in the light of the very limited role that the post office can play in such a task. If we interpret the provision as requiring that the letter must have been actually delivered to the addressee, we would be virtually rendering it a dead letter. The letter cannot be served where, as in this case, the tenant is away from the premises for some considerable time. Also, as addressee can easily avoid receiving the letter addressed to him without specifically refusing to receive it. He can so manipulate matters that it gets returned to the sender with vague endorsements such as “not found”, “not in station”, “addressee has left” and so on. It is suggested that a landlord, knowing that the tenant is away from station for some reasons, could go through the motions of posting a letter to him which he knows will not be served. Such a possibility cannot be excluded. But, as against this, if a registered letter addressed to a person at his residential address does not get served in the normal course and is returned, it can only be attributed to the addressee’s own conduct. If he is staying in the premises, there is no reason why it should not be served on him. If he is compelled to be away for some time, all that he has to do is to leave necessary instructions with the postal authorities either to detain the letters addressed to him for some time until he returns or to forward them to the address where he has gone, or to deliver them to some other person authorised by him. In this situation, we have to chose the more reasonable, effective, equitable and practical interpretation and that would be to read the word “served” as “sent by post”, correctly and properly addressed to the tenant, and the word “receipt” as the tender of the letter by the postal peon at the address mentioned in the letter. No other interpretation, we think, will fit the situation as it is simply not possible for a landlord to ensure that a registered letter sent by him I gets served on, or is received by, the tenant.”
Recently in K. Bhaskaran v. Sankaran Vaidyan Balan, IV (1999) CCR 63 (SC)=VIII (1999) SLT 147=2000(1) ALT (Crl.) 42 (SC), Supreme Court considered the question if a notice which is returned to the sender as ‘unclaimed’ can be treated as ‘service of notice’ under Clauses (b) and (c) of the proviso to Section 138 of the Act and the Apex Court after referring to Section 27 of the General Clauses Act, 1897, held that for reckoning the period of 15 days contemplated by Clause (c) of the proviso to Section 138 of the Act, when the notice is returned as unclaimed, the date of disclaimer would be the date of service.
5. In this case the notice is returned as ‘addressee not traced’, the address mentioned in the returned registered notice is–
Siva Cotton Traders Rep. by Proprietor
C/o Sri Sakti Swagruha Foods
(opp). Divyashakti Apartments
Ameerpet, Hyderabad.
The address of the petitioner mentioned in this petition is–
B. Kiranmaye W/o Raghava Rao
R/o H. No. 7-1-28/11
Opp. Divyashakti Apartments
Ameerpet, Hyderabad.
So, it is clear that petitioner is residing in a house opposite Divyashakti Apartments at Ameerpet, Hyderabad. Question whether the address of the petitioner mentioned on the registered notice is the correct address of the petitioner or not, and if the petitioner is running ‘Sri Sakti Swagruha Foods’ opposite Divya Shakti Apartments or not, and whether letters addressed to petitioner with the address mentioned on the returned registered notice would be received by the petitioner or not, are matters to be decided after taking evidence. In view of Section 27 of the General Clauses Act, 1897, when a letter is sent to a correct address by registered post merely because that letter is returned with an endorsement ‘addressee not found’ or ‘traced’, it cannot, prima facie be said that requirement of Clause (b) of the proviso to Section 138 of the Act is not complied with, because the addressee or the members in the family can trickishly say that such person is not there in that address. If the letter is sent by ordinary post it would be dropped or delivered in the address mentioned and so there would be no possibility of the letter being returned as ‘addressee not traced’. Therefore, the complainant in a case under Section 138 of the Act, by sending the notice contemplated by Clause (b) of the proviso to Section 138 of the Act by registered post acknowledgement due, cannot be put to more disadvantage than what he would have, had he sent such notice by certificate of posting, by quashing the proceedings under Section 482, Cr.P.C. even without affording an opportunity to him to establish that the accused is residing in the address mentioned on the registered notice and that he avoided service of notice by stating to the postman that no such person is there in that address.
6. No doubt, in R.M. Sundaram’s case (supra), in Shashi Finance Corporation’s case (supra) and in Shakthi Travel’s case (supra) it is held that if the cover is returned with an endorsement as ‘not found’ or ‘wrong address’, etc. It would not be ‘deemed service.’ As stated above the question, when a letter is returned with such endorsements, would be whether the notice is sent to the correct address or not. If after trial it is found that the notice is sent to the wrong address, the complaint would be dismissed as filed without accrue of cause of action. If it is found that the accused is residing in the address mentioned on the notice and yet it was returned with such endorsements, it is easy to see that the accused evaded service. So, in V. Satyanarayana’s case (supra) relied on by the learned Counsel for first respondent it is held that whether issuance of notice was proper and whether there was deliberate evasion on the part of the accused are matters to be decided on evidence, and that it would not be proper to quash the proceedings on the ground of want of notice.
7. Since the question whether notice under Clause (b) of the proviso to Section 138 of the Act was sent to the correct address to the drawer of the dishonoured cheque and if there was proper service of notice or not, are matters to be decided after taking evidence, merely because the registered notice was returned as ‘addressee not found’ complaint cannot be quashed on the ground that there is no cause of action for filing of the complaint. If the only ground on which the accused in a case under Section 138 of the Act seeks quash of the proceedings is lack of cause of action due to non-service of notice and if really he has a mind to pay the amount covered by the dishonoured cheque, he can, within 15 days from the service of summons in the case pay the amount covered by the dishonoured cheque to the complainant and ask for dismissal of the complaint on the ground that he could not pay the amount earlier because he had no due notice contemplated by the Clause (b) of the proviso to Section 138 of the Act, and as no prejudice would be caused to the complainant. In such case if the Magistrate does not dismiss the complaint, even after payment of the amount, the accused can take recourse to proceedings under Section 482, Cr.P.C. Without paying the amount covered by the dishonoured cheque, seeking quash of proceedings for want of due service of notice, is but an abuse of process of Court.
8. Question whether Ameerpet is in the limits of Begumpet Post Office and what is the effect of the certificate issued by the Post Master, Begumpet, and whether petitioner lost any cheques and if the dishonoured cheque is issued in discharge of a legally enforceable debt or not, are matters to be decided by the trial Court and not by this Court, because this Court while dealing with a petition under Section 482, Cr.P.C. is not supposed to take into consideration the defence of the accused on the documents produced by him, and can only go by the allegations in the complaint and the documents produced by the prosecution. It is needless to mention that the petitioner is at liberty to take all the pleas raised in this petition before this Court, in the trial Court.
9. The criminal petition, therefore, is dismissed.
