J U D G M E N T This Criminal Appeal, by the unsuccessful complainant, is directed against the judgment dated 14.7.2000 delivered in C.C.No.1058 of 1998 on the file of XVII Metropolitan Magistrate, Hyderabad. 2. The case of the prosecution in brief is that the accused purchased Fibre Glass material for Rs.1,30,000/- from the complainant’s firm and issued three cheques bearing Nos.005995, 005996 and 005997, dated 12.8.1998 for Rs.40,000/- each drawn on Dhanalaxmi Bank Limited, Abids Road, HIyderabad and on presentation of those cheques in City Union Bank, they were returned with an endorsement “Insufficient Funds”. The complainant got issued a legal notice on 14.9.1998 demanding payment of amount and stating that the accused intentionally issued the cheques without having funds in his account and he did not even claim the registered post with mala fide intention. 2. The prosecution examined one Ganapathi Goud, authorized accountant, as PW.1 and got marked Exs..P1 to P8. On an analysis of the entire evidence, the learned Magistrate, having come to the conclusion that there is legally enforceable debt and the cheque was issued by the accused, recorded a finding of acquittal solely on the ground that the notice as provided under Section 138 of the Negotiable Instrument Act, 1881 (for brevity “the Act”) was not sent to the accused. 3. The learned Counsel for the appellant has strenuously contended before this Court that the notice that was sent was marked as Ex.P5, however, it was returned with an endorsement “Not Claimed”. According to the learned counsel, when once he performed his part of sending the notice that is sufficient compliance, and it is immaterial as to whether the notice was received by the accused or not. He has further contended that the accused did not chose to adduce any evidence to rebut the presumption as provided under the Indian Evidence Act and hence, the Court below erred in holding that the notice was not sent. 4. On the other hand, the learned counsel for the 2nd respondent has opposed the said Submission stating that it is not mere sending of notice, but the complainant must also establish that the notice is served on the accused. In the instant case, except filing unclaimed letter, the complainant has not produced any evidence establishing the fact that the notice is served on the accused and thus, there is noncompliance of Section 138 of the Act. In the instant case, except filing unclaimed letter, the complainant has not produced any evidence establishing the fact that the notice is served on the accused and thus, there is noncompliance of Section 138 of the Act. Thus, the finding of acquittal recorded by the Court below is perfectly justified. 5. I find force in the submission made by the learned counsel for the appellant. What is provided under Section 138 of the Act is giving notice in writing to the drawer of the cheque within 30 days of the receipt of information by him from the Bank regarding the return of the cheque as unpaid. From this proviso, it is clear that a duty is caste upon the complainant to issue notice within 30 days and if the issuance of notice is not done, then only it call be said that there is non-compliance of Section 138 of the Act. Maybe the accused might not have received the notice for some reason or other. It can be understood if the endorsement of the Postal Department is that the addressee is not found or addressee left, etc. Even under those circumstances, it is held by the Courts that sending notice alone is sufficient. In the instant case, the endorsement of the Postal Department is “Not Claimed” that means having known the fact that a notice was sent by the complainant-appellant, the 2nd respondent intentionally avoided to receive it. In identical circumstances, the Apex Court as well as this Court gave a categorical finding that the notice that was sent by post and returned by the postal Department as Not Claimed” cannot be said to be non-service and the presumption should be that the notice was served on the 2nd respondent-accused. 6. Hence, this Court has no hesitation to hold that the judgment under appeal is wholly contrary to the settled preposition of law and accordingly, the same is set aside. 7. As the Court below gave a finding about the other aspects i.e. there is legally enforceable debt and the 2nd respondent issued cheque the matter is remanded back to the trial Court for the purpose of imposing required sentence on the accused in accordance with law. 8. Accordingly, the Criminal Appeal is allowed. --X—