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3. The Complainant issued Ex.P.5 - Statutory Notice to the Accused on 30.12.1995. A.1 and A.2 refused to receive the notice and the same was returned as "Intimated Unclaimed". Exs.P.6 and P.7 are the returned Postal Covers. A.3 was served with notice and Ex.P.8 is the acknowledgement dated 01.01.1996. The Accused did not pay the Cheque amount even after 15 days. Hence, the Complaint was filed on 15.02.1 996 under Sec.138 Negotiable Instruments Act.

4. To substantiate the averments in the complaint, in the Trial Court, Complainant was examined as P.W.1 and Bank Officials were examined as P.W.2 (Rajan) and P.W.3 (Sundararajan). No evidence was adduced onbehalf of the Accused. The Accused raised the defence that there was no proper service of notice. They have also raised the point that the complaint was not filed within the stipulated time i.e. on or before 14.02.1996, but filed on 15.02.1996, which is barred by limitation.

5. Upon consideration of the evidence adduced and the contentions urged, the Trial Court acquitted the Respondents / Accused 1 to 3 interalia on the following findings:-

(i) Notice sent to A.1 and A.2 was returned under Exs.P.6 and P.7 as " Intimated Unclaimed " and that there was no proper service of notice upon A.1 and A.2;
(ii) That notice sent to A.3 was served upon one Mohan, who had received the same onbehalf of one Nirmal Textiles Process and that there is no link evidence as to how the said Mohan is connected to Bastin Yesudass - A.3 and hence, there is no proper service of notice upon A.3;

7. Contention of Respondents 1 and 2/A.1 and A.2. Supporting the findings of the Trial Court, the learned counsel for the Respondents 1 and 2 / A.1 and A.2 submitted that there was no proper service of notice as contemplated and when the notice was returned under Exs.P.6 and P.7 covers as " Intimated Unclaimed ", there cannot be presumption of proper service of notice in demanding the amount. It is further submitted that the complaint ought to have been filed on or before 14 .02.1996 and that the complaint filed on 15.02.1996 is beyond the stipulated time and is barred under Ss.138 and 142 Negotiable Instruments Act.

15. In my view the return of postal cover as "Intimated Unclaimed" by itself would not amount to constructive notice when it is not averred by the Complainant in the complaint that the Accused is evading the service. Although, in appropriate cases, deemed service is to be accepted by the Court, such presumption of deemed service is not a matter of course in all cases. To raise the presumption of deemed notice, there should be clear averment in the complaint that the Appellant / Complainant had sent the statutory notice on demand intimating the dishonour of cheque and that the Respondents / Accused were evading the service. In the absence of such averment, no such presumption of deemed notice could be raised.