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2019 (10) TMI 806 - HC - Indian LawsService of notice - Dishonor of Cheque - offence punishable under Section 138 of N.I.Act - whether the cause of action has arisen as the notice sent by the respondent/accused to the accused/applicant was returned due to his unavailability? - HELD THAT:- Admittedly, the notice under Section 138 of N.I. Act was sent to the applicant/accused through registered post on his correct address. It is well settled that once notice has been sent by registered post with acknowledgment, it must be presumed that the service is made effective. In the case of V. Raja Kumari vs P. Subbarama Naidu & Anr, [2004 (11) TMI 515 - SUPREME COURT], the Hon'ble Apex Court has held that statutory notice under Section 138 of the Act sent to the correct address of the drawer has been served has to be decided during trial and the complaint ought not to be dismissed at the threshold on the purported ground that there was no proper service of notice. It has been further argued on behalf of the applicant that the cheque had got dishonored for reason “ Kindly contact drawer/drawee bank and pleasen.” and not for the fund insufficient. Now the onus to prove this was upon the applicant and he can summon the bank record to show that at the relevant time period when the cheque in question was presented, he had sufficient balance in his account and therefore, the reason for dishonour of cheque in question is to be adjudicated after recording the evidence of the parties - It is also pertinent to note that in the instant case, the complainant has already discharged his burden by producing the impugned cheques, which he alleges to have been issued by the applicant/accused in his favour bearing a signature, hence, initial presumption of the said cheque having been issued in favour of the complainant is already there which needs to be rebutted by the accused. The Court finds that the impugned order which is being challenged by the learned counsel for the applicant does not suffer from any lacuna at this stage and, therefore, this Court does not find any force in the arguments of the learned counsel for the applicant - petition dismissed.
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