HONOURABLE SRI JUSTICE RAJA ELANGO CRIMINAL PETITION No.13310 of 2010 ORDER: Petitioner approaches this Court with a prayer to quash the proceedings against him in S.T.C.No.33 of 2009 on the file of the Judicial Magistrate of First Class, Madanapalle, Chittoor District, whereby he is arrayed as an accused for the offence punishable under Section 138 of the Negotiable Instruments Act(for short ‘the Act’). Heard both sides. Learned counsel for the petitioner contended that the petitioner has obtained a contract work of ‘excavation of Somasila-Swarnamukhi Link Canal’ from the Government of Andhra Pradesh as a sub- contractor from M/s.GSR & Company under a sub-contract agreement. The second respondent-complainant requested the petitioner for a portion of work and the petitioner inclined to grant the same and out of that transaction, as requested by the 2nd respondent-complainant, the four cheques in question were issued by the petitioner herein on 12.06.2008, 12.07.20-08, 12.08.2008 and 15.06.2008 for Rs.25.00 lakhs, Rs.25.00 lakhs, Rs.25.00 lakhs and Rs.5.00 lakhs respectively, only as security for execution of work and to commence the work and no consideration was there under the said cheques and hence there is no legally enforceable debt as far as the instruments are concerned. Learned counsel further submitted that the notice as per the complaint was sent on 05.12.2008 and the same was returned as unserved to the complainant on 24.12.2008. As per the endorsement on the said postal cover the postman visited the place on 09.12.2008 and 10.12.2008. If the endorsement dated 09.12.2008 is taken into consideration, the present complaint filed before the court below is barred by limitation as per the provisions of the Act. Learned counsel for the petitioner further relied on the Judgment of Kerala High Court in JAYACHANDRAN v. BABURAJ[1] and also the decision of the Hon’ble Supreme Court in K.BHASKARAN v. SANKARAN VAIDHYAN BALAN[2]. This Court perused the entire documents and also the contentions raised by the counsel concerned. As far as the first contention is concerned, the same is a disputed fact, which cannot be looked into at this stage by invoking the provisions under Section 482 Cr.P.C. As far as the second contention is concerned, the learned counsel for the respondent – complainant submitted that the said notice returned to the complainant on 24.12.2008. Hence, the limitation as far as the complainant’s knowledge is concerned starts from 23.12.2008, since the registered post sent by the complainant was not returned to him up to 23.12.2008. On 24.12.2008 when he received the returned cover, he invoked the provisions under Section 138 of the Act, by way of calculating the date. As far as the contentions raised by the learned counsel for the petitioner that once the petitioner filed a petition before this Court stating that he has not received any notice as stated by the complainant, he has no right to raise any point on the basis of the notice said to have been served on the petitioner concerned and further as rightly pointed out by the learned counsel for the respondent as far as the service of notice is concerned, the knowledge of the complainant is only on 24.12.2008 and further the same notice was sent on 05.12.2008 by certificate of posting also. Even assuming for a moment that the said notice received by the petitioner herein is on 06.12.2008 or 07.12.2008, the knowledge regarding the service of notice cannot be attributed since in certificate of posting, the complainant may not be in a position to know whether the notice is served on the accused or not. For abandoned caution, the complainant has served the notice by registered post as well as the certificate of posting. Since the notice returned on 24.12.2008 and also it is the case of the petitioner that he has not received any notice, this Court is of the view that the said point cannot be appreciated. Hence, the present petition to quash the complaint is liable to be dismissed. Accordingly, the same is dismissed. As far as the decisions relied on by the learned counsel for the petitioner are concerned, the first decision in JAYACHANDRAN’s case, is totally against the contentions of the learned counsel for the petitioner. The entire reading of the said judgment is against the points raised by the learned counsel for the petitioner. As far as the second decision relied on by the learned counsel in K.BHASKARAN’s case, it is not squarely applicable to the present facts and circumstances of the case and in the said case the notice is returned with an endorsement as ‘unclaimed’. It means the knowledge of the accused concerned regarding the service of notice. Admittedly, in the present case, it is the case of the petitioner no such notice was served on him as stated earlier. Once the petitioner raised the point that he has not been served with notice, then he cannot take advantage of even a defect in the notice concerned. Hence, the Criminal Petition is dismissed. The miscellaneous petitions, if any, filed along with the criminal petition shall stand closed. ________________ RAJA ELANGO, J. 30th March 2011, Rns. [1] 1998 CRL.L.J.3671 [2] AIR 1999 SUPREME COURT 3762(1)