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8. The learned advocate read the relevant part of the judgment of the learned JMFC. At page 50 (internal typed page 12), the learned JMFC has discussed this aspect saying that 'at this stage, it is necessary to record once again that on the part of the accused, defence is taken to the effect that he has not received the notice. As against that, the complainant has proved beyond doubt that notice was sent at the residential address of the accused. Ofcourse the accused is able to bring on record beyond doubt that from 1.5.1999 to 20.12.1999, he was not available at the place of his business and his place of residence and, therefore, notice was not served to him. But, it is a fact that, in this case, a notice by Registered Post A.D. at the office address of the accused, which is Exh. 16, has returned with an endorsement 'unclaim', whereas, notice sent by UPC at the residential address of the accused- Exh.14 is not returned. As per the settled principle, notice is served at the residence of the accused. This inference can be drawn......' Learned advocate Mrs. Krishna Rawal emphatically argued that the case is decided by the learned JMFC on presumption but then such presumption is permissible to be drawn. In case, the learned JMFC does not draw that inference, he will be failing in his duty.

9. Learned advocate Mrs. Krishna Rawal then invited attention of the Court to page 26 (internal page 8, para 15) of the Appellate Court's judgment. The learned Additional Sessions Judge, Fast Track Court, Vadodara has discussed this aspects while discussing Issue No.1, raised by him in para 13. The submissions made by the learned advocate for the accused-appellant before the First Appellate Court, are taken to be the findings recorded by the learned Judge.

The learned Judge has recorded that ¿Sthe learned advocate for the appellant Shri Jamin Patel has argued that under Clause (b) of Section 138, it is mandatory to give a notice within 15 days from the date of receipt of intimation of the return of the cheque. It is further submitted by the learned advocate for the appellant-accused that, if within 15 days from the date of receipt of the notice, amount is not paid then, a complaint has to be filed within one month (these are all the submissions of the learned advocate for the appellant before the First Appellate Court, submission further proceeds). ¿SAccording to his arguments, from the documents produced at Exhs. 47 to 53, the accused was on leave from 1.5.1999 to 20.12.1999, therefore, no notice was served to him, which was sent by the Registered Post A.D.¿¿ (further submission made by the learned advocate follows). ¿SSimilarly, UPC notice sent at his residential address on 15.5.1999 was not received by him. Therefore, there was no cause of action for the complaint filed on 22.6.1999.¿¿(submission then proceeds to say). The complainant knowing well that the accused is not present at his place of service or his residence, malafidely sent notices¿¿. (Next argument is) ¿Sthe complainant in his cross-examination admitted that as the accused was not present in Vadodara and in the company, Notice was sent on 15.5.1999 on the company. That under the provisions of Section 27 of the General Clauses Act, a presumption cannot be drawn that as summons were served at the residential address of the accused, notice also must have been served.¿¿ Learned advocate Mrs. Krishna Rawal argued that, to establish that the notice sent by UPC is served, no personnel from the Postal Department is examined in this regard. She relied upon a decision reported in 2002 Criminal 143 and 2004 BCR 170.

10. The position of law is well settled on the point. A notice sent by UPC is presumed to have been served unless it is returned. No personnel from the postal department is required to be examined to establish that the notice sent by UPC, if not returned, is presumed to have been served.

11. Learned advocate Mrs. Krishna Rawal cited following decisions:

AIR 2001 SC 676 (head note 'B') (3) GLH 643 (SCC) 397 AIR 1999 SC 3607 (para 8) These decisions are not applicable to the facts of the present case.