HONOURABLE SRI JUSTICE RAJA ELANGO CRIMINAL PETITION No.13311 of 2010 ORDER: Petitioner approaches this Court with a prayer to quash the proceedings against him in S.T.C.No.50 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 cheque in question issued on 15.06.2008 for a sum of Rs.50.00 lakhs. But, prior to deposit of the same, on 13.05.2008 and 25.08.2008 by way of Demand Drafts, an amount of Rs.20.00 lakhs and Rs.30.00 lakhs respectively were already paid to the complainant herein. Hence, there is no legally enforceable debt as far as the said instrument is concerned. Learned counsel further submitted that the notice as per the complaint was sent on 29.12.2008 and the same was returned as unserved to the complainant on 12.01.2009. As per the endorsement on the said postal cover the postman visited the place on 02.01.2009 and 03.01.2009. If the endorsement dated 03.01.2009 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 12.01.2009. Hence, the limitation as far as the complainant’s knowledge is concerned starts from 11.01.2009, since the registered post sent by the complainant was not returned to him up to 11.01.2009. On 12.01.2009 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 12.01.2009 and further the same notice was sent on 29.12.2008 by certificate of posting also. Even assuming for a moment that the said notice received by the petitioner herein is on 30.12.2008 or 01.01.2009, 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 12.01.2009 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)