Judgment : The accused in C.C.No.722 of 1993 on the file of the XVII Metropolitan Magistrate, Saidapet, Madras, has filed this petition under Sec.482, Crl.P.C. praying to call for the records in the above case and quash the same. 2. Short facts are. The respondent has filed the private complaint against the petitioner for offence under Sec.138, Negotiable Instruments Act (which I shall hereafter refer to as ‘the Act’). The allegations in it are briefly as follows: The accused and her husband arc dealers in Real Estate. The accused offered to sell the properly measuring 3 grounds near Seashore Town near beach in Saidapet Taluk. The accused received major portion of the sale consideration of Rs.1,16,000 subsequently the accused and her husband could not fulfil the promise. In acknowledgement of the liability, the accused issued two cheques for a sum of Rs30,000 each dated 25. 1992 and 6. 1992 in favour of Krishnan. Krishnan endorsed the cheque in favour of the complainant for valuable consideration. The complainant presented the cheque dated 25. 1992 on 7. 1992. It was dishonoured due to ‘funds insufficient’ by memo dated 7. 1992. The accused requested the complainant to wait for some time and then present it after getting his information. Later, the accused requested the complainant to present both the cheques in the third week of November, 1992. The complainant presented both the cheques on 211. 1992. Both cheques were returned with dishonour intimation since accused had cleverly sent intimation to the banker to stop payment of both the cheques, even though at the time of sending such intimation, the accused had no funds to meet but the amounts of the cheques. Thus the accused had committed offence punishable under Sec.138 of the Act. He sent lawyer’s notice to the accused on 112. 1992. The accused managed to evade the service of notice on her and made the postal authorities to endorse as “not found in my delivery time.” Immediately after receipt of the return cover, the complainant instructed his lawyer to send a copy of notice through ‘certificate of posting’ on 1. 1993. Hence the complaint. 3. Mr.B.S. Gnanadesikan, the learned counsel appearing for the petitioner, would submit that. (i) there was no legally enforceable debt and the cheques were not issued to discharge a liability and so the offence is not made out. 1993. Hence the complaint. 3. Mr.B.S. Gnanadesikan, the learned counsel appearing for the petitioner, would submit that. (i) there was no legally enforceable debt and the cheques were not issued to discharge a liability and so the offence is not made out. (ii) The cheques were returned for the reason “payment stopped” by the drawer and so it will not be attracted by Sec.138 of the Act. (iii) the notice of demand was not served on the accused and so the requirement is not fulfilled. I have heard Mr.Padmanabhan, the learned counsel appearing for the respondent, on the above aspects. 4. I shall take for consideration the submissions made by Mr.B.S.Gnanadesikan in seriatim. I shall first take up submission No. (i) viz. that there was no legally enforceable liability and for discharge of the same the cheque was not issued and so offence was not made out. To consider this submission, the relevant allegations need be stated. In para.3 of the complaint, it is stated that accused and her husband are dealers in Real Estate and the accused offered to sell the property measuring 3 grounds and received a major portion of sale consideration of Rs.1,16,000 and subsequently the accused and her husband could not fulfil the promise. Then in para.4, it is stated as follows: “The complainant submits that in acknowledgement of the liability, the accused issued two cheques. The two cheques referred to are forRs.30,000dated25. 1992and 6. 1992in favour of Krishnan. It is further alleged that Krishnan endorsed the cheque in favour of the complainant for valuable consideration. In the context what has been stated in para.3 of the complaint, it is to be construed that what is stated in para.4 of the complaint is that these cheques were issued by the accused in discharge of the liability. The liability is that the accused had received amounts permission to sell 3 grounds of land, but they could not fulfil that promise and so the amount is payable. This cheque was endorsed in favour of the complainant As such, the complainant is ‘holder in due course: In view of the allegations made in paras.3 and 4 of the complaint, the first submission fails. 5. The second submission is that the cheque was returned on the ground”payment stopped by the drawer“. This cheque was endorsed in favour of the complainant As such, the complainant is ‘holder in due course: In view of the allegations made in paras.3 and 4 of the complaint, the first submission fails. 5. The second submission is that the cheque was returned on the ground”payment stopped by the drawer“. If the allegations made in the complaint stopped with merely alleging that the cheques were returned on the ground that payment was stopped by the drawer, certainly offence under Sec.138 of the Act is not attracted. But in this case, something more is alleged in the complaint. For considering this submission, the relevant allegations made in the complaint need be extracted. They are as follows: ”The complainant submits that he was put to shock on receipt of the dishonour intimation through is banker, which was received by him on 12. 1992, since the accused cleverly sent intimation to her banker to stop payment of both the cheques, even though at the time of sending such intimation, the accused has no funds to meet out the amount of the cheques. Both the cheques were returned to the complainant, on the ground that ‘payment stopped by the drawer’. The question that falls for consideration is whether on the above allegations, the complaint can be quashed at the threshold. 6. In Binary Systems P.Limited v. Mobel Power Private Limited, Madras, 1992 L.W. (Crl.) 307, a similar question arose for consideration. In that complaint the relevant allegations were as follows: “On the latter occasion, the cheque has been returned with the endorsement ‘stop payment’. The complainant submit that the accused have acted diabilically. On both the occasions, when the cheque reached the accused’s bank in Bangalore for collection sufficient funds were not available resulting in the dishonour of the cheque.” In the above ruling, I have held that there are positive allegations in the complaint to the effect that only due to the insufficiency of funds the cheque was returned but diabilically the accused had acted and the cheque was returned with the endorsement ‘stop payment’. So it is to be seen only during the course of trial whether the cheque was returned unpaid due to the insufficiency of funds as alleged in the complaint or otherwise and when there are positive allegations in the complaint that cheque was returned due to insufficiency of funds, those allegations cannot be ignored and the complaint quashed at the thereshold. Whether those allegations are true or not can be tested only during trial. That stage has not come. Holding so, the petition for quashing the proceedings was dismissed. In Vijayalakshmi v. Rashida, 1991 L.W. (Crl.) 602. I had an occasion to consider a cheque which was returned for the reason “payment countermanded by the drawer”. In that complaint, it is mentioned that the accused did not have funds in the bank. But the sufficiency of those allegations vis-a-vis quashing of the complaint at the threshold was not considered. 7. In Manohar and another v. Mahalingam, 1992 L.W. (Crl.) 367, Justice Padmini Jesudurai has observed in para 11 as follows: “In the same way, a clever drawer, knowing fully well, that the cheque would be returned for want of funds, could always circumvent Sec.138 of the Act, by issuing ‘stop payment’ order to the bank and later contend, that Sec.138 of the Act cannot apply, since the cheque was returned unpaid, not for want of funds but in pursuance of a ‘stop payment order’ issued by him. This penal provision could not be nullified in that way. [Italics supplied] Then in para. 13, the learned Judge has observed as follows: “It follows from the foregoing discussions that even though the answer or the objection memo on the unpaid cheque shows a reason other than insufficiency of funds or inadequate arrangement, it would still be open to the com-plainant to establish, as a fact, that the cheque Was really returned unpaid only for want of funds or for inadequate arrangement. This the complainant could do by summoning the necessary bank records and the bank witnesses. This ingredient has to be established de hors an answer by the bank to that effect in the returned cheque or even inspite of a different answer given by the bank in the returned cheque. This could be done only during trial, by oral and documentary evidence. This ingredient has to be established de hors an answer by the bank to that effect in the returned cheque or even inspite of a different answer given by the bank in the returned cheque. This could be done only during trial, by oral and documentary evidence. It is for the court of facts, on the material placed before it, to render a finding, as to whether the cheque had been returned unpaid either for want of funds or for inadequate arrangement.” On the allegations made in the complaint which I have extracted at the outset and on the facts and authorities in this regard. I am clear that the second submission made by Mr.Gnanadesikan, cannot be sustained and has to be rejected. 8. Coming to the third submission regarding service of notice, the relevant allegations need be stated. In para.10 of the complaint, it is stated as follows: “The complainant submits that he caused the issue of a lawyers notice to the accused on 112. 1992 by registered post acknowledgement due’ and the accused managed to evade the service of the notice on her and made the postal authorities to endorse as ‘not found in my delivery time’ and hence the R.P.A.D. cover was returned to the complainant’s Advocate and immediately on receipt of the returned cover, the complainant instructed his Counsel to send the copy of the notice by certificate of posting on 1. 1993.” In S. Prasanna v. R. Vijayalakshmi, 1991 L.W. (Crl.) 576, I had an occasion to consider a case where the notice sent through lawyer to the accused by registered post with acknowledgement due was returned with an endorsement ‘not found at delivery time’. In that case also, definite allegations were made in the complaint that the accused had deliberately evaded receipt of the registered notice. The ground urged to quash the. proceedings was that the notice sent by the complainant was hot served to him but was returned. While considering that submission. I have stated as follows: “So the learned counsel contended that there was no ‘service of notice’, in this case, and hence the offence is not complete. In the complaint, it is stated that the accused deliberately evaded receipt of registered notice. This would amount to his knowledge that such a notice was sent by the complainant and deliberate refusal of the same. In the complaint, it is stated that the accused deliberately evaded receipt of registered notice. This would amount to his knowledge that such a notice was sent by the complainant and deliberate refusal of the same. That would dearly amount to constructive service of notice. The very purpose of the Act cannot be thwarted by simply refusing the notice. I am Clear that deliberate evasion of receipt of registered notice would amount to constructive service of notice and so I do not accept this contention.” In Elangovan v. Narayana Iyengar, (1991) 2 M.W.N. (Crl.) 87. This Court had occasion to consider the notice which was returned with postal endorsement “addressee not available in station”. This Court has held that it would not suffice. 9. In N.K. Jain v. C.K. Shah, 1991 Crl.L.J. 1347, the Apex Court had laid the principles while interpreting a statute. In it, the Apex Court had extracted the observation of Lord Denning, L.J. It reads as follows: “.....A Judge, believing himself to be fettered by the supposed rule that he must look to the language and nothing else, laments that the draftsmen have not provided for this or that, or have been guilty of some or other ambiguity. It would certainly save the Judges trouble if the Acts of Parliament were drafted with divine prescience and perfect clarity. In the absence of it, when a defect appears, a Judge cannot simply fold his hands and blame the draftsman. He must set to work on the constructive task of finding the intention of Parliament, and he must do this not only from the language of the statute but also from a consideration of the social conditions which gave rise to it and of the mischief which it was passed to remedy and then he must supplement the written word so as to give force and life’ to the intention of legislature. A Judge should ask himself the question how, if the makers of the Act had themselves come across this rock in the texture of it, they would have straightened it out? He must then do so as they would have done. A Judge should ask himself the question how, if the makers of the Act had themselves come across this rock in the texture of it, they would have straightened it out? He must then do so as they would have done. A judge must not alter the material of which the Act is woven, but he can and should iron out the creases." [Italics supplied] Having in mind this golden rule, I am clear that these provisions of the Act can be interpreted only in the manner referred to supra. 10. Reiterating the views which I have already taken, I hold that the allegations made in this complaint are sufficient to satisfy the requirements with regard to "service of notice". Hence the third submission of Mr.Gnanadesikan also falls to the ground. 11. Mr.Gnanadesaikan, would also submit that the date of return of the notice was not stated in the complaint. It is stated in para 10 of the complaint that immediately on receipt of the returned cover, the complaint instructed his counsel and send the copy of the notice by certificate of posting on 1. 1993. The date of return of the notice can be inferred from the above averments. Mr.Gnanadesikan, would further submits that no documents were filed in court to substantiate the complaint’s claim. Whereas, the learned counsel for the respondent, would submit that they were produced but later taken back. This aspect can be considered only during trial. 12. Since none of the submissions made by Mr.Gnanadesikan finds acceptance with me, the petition fails and shall stand dismissed.