JUDGMENT : 1. The complainant in ST No. 1274/2005 of the Judicial First Class Magistrate-1 Palakkad, aggrieved by the acquittal of the accused under section 255(1) of Cr.P.C. for offence punishable under section 138 of the Negotiable Instruments Act, has preferred this appeal. 2. The case of the complainant was that, they were conducting a kuri, from the Kozhikode Branch, in which the accused had subscribed a chitty for Rs.1,00,000/-. He bid the chitty for Rs.50,000/-and received the amount on execution of necessary documents. He thereafter failed to remit the future installments. Towards the discharge of the existing liability, the accused executed and delivered to the complainant a cheque for a sum of Rs.47,500/-drawn on his account. The cheque was presented for collection but was returned dishonoured. Statutory notice was issued, which was neither replied nor the amount paid. Hence, the complaint was laid alleging commission of offence punishable under section 138 of the NI Act. 3. Before the court below, the accused appeared and pleaded innocence. On the side of the complainant, his power of attorney holder was examined as PW1 . Exts.P1 to P8 were marked. There was no defence evidence . The court below, on an evaluation of the available materials concluded that the complainant had failed to comply with the statutory formalities as envisaged under the NI Act and acquitted the accused. This is under challenge . 4. Heard the learned counsel for the complainant and the learned counsel for the accused. 5. The case of the complainant is sought to be established through the oral testimony of PW1. Ext.P2 is the cheque dated 2/2/2005. The cheque was returned dishonoured as evidenced by Ext.P3 memo dated 8/2/2005, issued by the drawee Bank. Ext.P4 dated 2/2/2005 is the memo issued by the payee bank. Ext.P5 is the statutory notice dated 7/3/2005. Ext.P6 is the postal receipt dated 9/2/2005 evidencing the dispatch of the original of Ext.P5. Ext.P7 is the acknowledgment card which bears the signature of the accused. The complaint was laid on 23/4/2005. 6. In the complaint, it was specifically pleaded that the accused received lawyer notice on 10/3/2005. However, the court below, referring to Ext.P7 acknowledgment card, held that it did not prove the date of service of lawyer notice and the complaint failed to prove the actual date of service of the lawyer notice. The complaint was laid on 23/4/2005. 6. In the complaint, it was specifically pleaded that the accused received lawyer notice on 10/3/2005. However, the court below, referring to Ext.P7 acknowledgment card, held that it did not prove the date of service of lawyer notice and the complaint failed to prove the actual date of service of the lawyer notice. It was held that though complainant had stated in the complaint that it was served on the accused on 10/3/2005, in the chief affidavit of PW1 it was not averred. The court below on the basis of the above, held that the serving of notice on accused was a fact in issue which has to be proved by the complainant like any other fact in issue and there is no presumption as to the serving of lawyer notice. The contention of the counsel for the complainant that the impression of postal seal with date inscribed on Ext.P7 may be considered as the date of service of notice was negatived on the reasoning that the date of actual service may be different from the date inscribed on the acknowledgment card. 7. The accused has no case that statutory notice was not served on him. He has also no case that notice was not sent in correct address or that the signature seen in Ext.P7 was not his signature. The crucial question that arises is whether the statute requires the complainant to establish the actual date of service of notice on the accused. Though Ext.P7 acknowledgment card bears the signature of the accused, he has not written the date of receipt. Only his signature is affixed on the acknowledgment card. The stamp of the Kozhikode post office is seen affixed bearing the date as 10/3/2005. In the complaint it was specifically pleaded that the notice was served on 10/3/2005. The acknowledgment card bearing the above date was produced along with the complaint. The averment that it was served on 10/3/2005 was not challenged in the cross examination of PW1. In the light of the above and in the light of the presumption under section 27 of the General Clauses Act, it can be held that notice was served on 10/3/2005. 8. The averment that it was served on 10/3/2005 was not challenged in the cross examination of PW1. In the light of the above and in the light of the presumption under section 27 of the General Clauses Act, it can be held that notice was served on 10/3/2005. 8. Even assuming that acknowledgment card did not clearly disclose the actual date of service of notice and even if the complainant could not convincingly establish the actual date of service of notice on the accused, can the complaint be dismissed on that sole ground alone is the crucial question that arises in this appeal. According to Ms.Jaeona James, the learned counsel who represented the appellant, law does not expect the complainant to establish the precise date of service of notice on the accused. Under section 138(a), the statutory obligation on the complainant is to present the cheque within a period of six months from the date on which it is drawn or within the period of its validity, whichever is earlier. Under Section 138(b) the payee has to make a demand for payment of the said amount of money by giving a notice in writing, to the drawer of the cheque within 30 days of receipt of information from the bank regarding the return of the cheque as unpaid. Under section 138(c), the drawer of the cheque is bound to make payment of the said amount of money to the payee or as the case may be, to the holder in due course of the cheque, within fifteen days of receipt of the said notice. Section 142(b) prescribes that the complaint shall be made within one month from the date on which the cause of action arises under clause(c) of the proviso to section 138. 9. Cumulative reading of sections 138 (c) and 142(b) indicates that the complainant is under an obligation to wait for a period of 15 days from the date of service of the said notice on the accused and shall file the complaint within a period of one month thereafter, reckoned from the period mentioned in section 138(c). Cumulative reading of both the provisions indicates that relevance of the date of service of notice is only to satisfy the court that the period covered by sections 138(c) and 142(b) are complied with. Cumulative reading of both the provisions indicates that relevance of the date of service of notice is only to satisfy the court that the period covered by sections 138(c) and 142(b) are complied with. The limited significance of the date of service is for reckoning the limitation period as contemplated under section 138(c) as well as section 142(b) of the NI Act. The statute does not indicate that the complainant has to establish the precise date of service of notice on the accused. The only obligation of the complainant is to establish that he has waited for 15 days from the date of service and has filed the complaint within 30 days thereafter. If the complainant is able to establish the above, by broad reasoning, it will be sufficient. 10. Insisting that the complainant should establish the precise date of service, which is not a fact within the knowledge of the complainant, is likely to create practical difficulties.It may be possible that the dates on the acknowledgment card may not be clearly discernible. It may also be possible that the acknowledgment card may show two dates, one of receipt in the post office and the date of return. The actual date of service may be a day in between. It may further be possible that the addressee may receive the envelope few days after the intimation is given to him by the postal authorities. The complainant cannot be called upon to mention the date which is not within his knowledge. It is true that if the acknowledgment card does not bear the actual date of service, it may be possible for the complainant to call upon the postal authority to give a certificate regarding the actual date of service of notice. However, it may not be possible in every case, and in some cases the receipt of such certificate from the postal authorities may be after the expiry of limitation period. The above situation may arise even if letter is returned as refused. In some cases, the actual date of refusal or tender of notice to the addressee may not be clearly discernible from the envelop. The above situation may arise even if letter is returned as refused. In some cases, the actual date of refusal or tender of notice to the addressee may not be clearly discernible from the envelop. Hence, the inability on the part of the complainant to establish the actual date of service of notice on the accused or the date of refusal to receive the notice, as the case may be, cannot be a reason for dismissal of the complaint, if, as mentioned above, the complainant is able to establish that he has complied with the statutory formalities. If the date of service is available from the acknowledgment card itself, that can be taken note of the court and further evidence is not required to establish the date of service, unless the question of limitation is raised. If the date of actual service of the notice is not clearly discernible from the acknowledgment card, that cannot prejudice the complainant, since that is not due to default of the complainant. That by itself also cannot lead to dismissal of the complaint if he is able to establish by evidence the compliance of sections 138 (c) and 142 (B) of Act. 11. In the case at hand, the envelope was dispatched from Palakkad on 9/3/2005 addressed to the accused in his Kozhikode address. Even assuming that the notice was actually served on the accused on the date of dispatch itself, evidently complaint was laid after the waiting period of 15 days as contemplated under section 138 of the NI Act. It is also evident that the complaint was laid exactly on the completion of 30 days reckoned from 9/3/2005. It is thus clear that the complainant has complied with all the statutory formalities. The court below was not justified in concluding that the complainant, in the above circumstances, did not clearly establish the actual date of service of notice on the accused. 12. On merits, PW1 has given cogent evidence regarding the joining of the chitty, bidding of the chitty and that the cheque was handed over towards the discharge of an existing liability. Accused had no case that he had not joined the chitty or that he had not bid the kuri. The accused had no case that he has not committed default. Accused had no case that he had not joined the chitty or that he had not bid the kuri. The accused had no case that he has not committed default. The signature on the cheque and the fact that the cheque was drawn on the account of the accused are also not disputed. Joining of the chitty and the drawal of the chitty is further established by Ext.P8 bond. It is further to be noticed that even though Ext.P5 statutory notice was served on him, he had not sent a reply to that. In fact, in cross examination of the complainant, a suggestion was put to the witness that blank signed cheque given at the time of bidding the kuri was misused by the complainant. However, at the time of reply to section 313 Cr.P.C. questioning, the accused took up a stand that the entire cheque amount was paid and there was no existing liability. Discharge was not established by any cogent evidence. 13. The court below had also arrived at the conclusion that liability was established. Having considered this, I am inclined to hold that the complainant had succeeded in proving the existence of a legally sustainable debt and that the cheque remained unpaid even after the issuance of the statutory notice. Evidently, the accused had committed offence punishable under section 138 of the NI Act and is liable to be convicted accordingly. 14. Regarding the sentence, I feel that considering the fact that the cheque remained unpaid since 2005, imposition of fine of Rs.55,000/-in default of which he shall undergo SI for two months, will serve the interest of justice. If the fine amount is deposited, the entire amount shall be paid to the complainant as compensation. Considering the fact that the appeal is of the year 2007 and that the judgment of the court below is reversed at the appellate stage, the accused can be given reasonable time to discharge the liability . 15. Accordingly, the appeal is allowed. The accused is convicted for offence punishable under section 138 of the NI Act and sentenced to pay a fine of Rs.55,000/-(Rupees fifty five thousand only) and in default to undergo SI for two months. If the fine is remitted, it shall be released to the complainant as compensation. 15. Accordingly, the appeal is allowed. The accused is convicted for offence punishable under section 138 of the NI Act and sentenced to pay a fine of Rs.55,000/-(Rupees fifty five thousand only) and in default to undergo SI for two months. If the fine is remitted, it shall be released to the complainant as compensation. Execution of sentence will stand deferred for a period of three months from today to enable the accused to discharge the liability. If the fine amount is not remitted, the court below shall initiate appropriate proceedings for recovery of the amount after the expiry of three months.