Hon'ble Judges/Coram:
Dr. Arijit Pasayat and C.K. Thakker

JUDGMENT

Arijit Pasayat, J.

1. The appellant (hereinafter referred to as the 'accused') calls in question legality of judgment rendered by learned Single Judge of the Andhra Pradesh High Court holding that the question whether notice as required under Section 138 of the Negotiable Instruments Act, 1881 (in short the 'Act') 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.

2. Backgrounds facts in a nutshell are as follows:

Complaint was filed by respondent no. 1 alleging commission of offence punishable under Section 138 read with Section 142 of the Act. It was alleged that cheque dated 30.6.1997 bearing no. SB/A/31 839579 for an amount of Rs.80,000/- issued by the accused in discharge of the advance amount paid by the complainant in respect of the sale consideration was dishonoured by the drawee bank on account of insufficiency of funds. The complainant received this intimation on 2.8.1997. He got issued legal notice on 9.8.1997 through his advocate to the correct address of the accused. In the complaint, it is stated that the said legal notice was returned with an endorsement that the door of the house of the accused was locked. Subsequently, the amount was not paid by the accused. Hence, he filed the complaint. The learned Magistrate after going through the contents of the complaint recorded the sworn statement of the complainant. Taking into consideration of the contents of the sworn statement, he opined that under Section 138 of the Act, the service of notice on the person, whose cheque was dishonoured is mandatory and in the instant case the notice was not served on the accused and mere sending of notice by the complainant to the accused cannot be taken into consideration. Holding thus, he dismissed the complaint. The said order was assailed before the High Court. A revision petition in terms of Sections 397 and 401 of the Code of Criminal Procedure, 1973 (in short the 'Code') was filed before High Court. The High Court by the impugned order held that the procedure followed by the Magistrate is not correct. The complainant complied with the requirement of law by sending registered legal notice. Non-service of notice is not a ground for rejecting the complaint, even before it is numbered. What is the effect of non-service of the notice when the door of the house of the accused was closed, will be considered after trial. Reference was made to a decision of the High Court in V. Satyanarayana v. A.P. Travel & Tourism Development Corporation Ltd. (1) 1997 (2) ALT (Crl.) 1 A.P.) where it was held that the complaint under Section 138 of the Act cannot be quashed or dismissed merely because the notice was not served on the accused or