THE HON’BLE SRI JUSTICE SAMUDRALA GOVINDARAJU CRIMINAL APPEAL No.2161 of 2004 BETWEEEN: Vudhathu Nageswara Rao … Appellant AND 1. Seeram Rama Rao & another … Respondents THE HON’BLE SRI JUSTICE SAMUDRALA GOVINDARAJULU CRIMINAL APPEAL No.2161 of 2004 JUDGMENT: Questioning acquittal of the accused/1st respondent of the offence under Section 138 of the Negotiable Instruments Act, 1881 by the lower Court, the complainant filed this appeal. According to the complainant, the accused borrowed Rs.1,30,000/- from him by executing Ex.P5 promissory note dated 09.04.2000 and towards discharge of the said debt, the accused had drawn Ex.P1 cheque dated 29.11.2000 for Rs.1,50,000/- which was dishonoured on the ground that stop payment instructions were given by the complainant. After issuing Ex.P3 notice dated 15.12.2000 to the accused by courier service, which notice was returned unserved, the complainant filed the complaint in the lower Court against the accused alleging the above offence. The complainant as PW1 spoke to contents of the complaint in his evidence. On the other hand, the accused examined himself as DW1 in this case. It is his contention as well as evidence that he borrowed Rs.30,000/- from DW2 G.Sudhakara Rao in the year 1997 and that DW2 obtained three blank cheques as well as blank promissory notes from him towards security and that inspite of discharge of the said debt to DW2, he did not return blank signed cheques and blank signed promissory notes to him and gave Ex.D2 letter dated 20.10.2000 admitting the said facts. DW2 denied having given Ex.D2 letter. After the date of Ex.D2 letter, the accused gave Ex.D1 letter to his banker asking the banker to stop payment, in case those three blank signed cheques were presented for payment after filling them. PW3 who is banker of the accused stated that on 02.11.2000, the accused addressed Ex.D1 letter to the bank for stop payment whenever cheque Nos.569093, 964094 and 564096 are received for collection. Ex.P1 is one of the above three cheques. Evidence of DW1, PW3 and Ex.D1 show that after the date of Ex.D2 letter and prior to the date of Ex.P1 cheque, the accused gave stop payment advice to his banker as per Ex.D1. The said sequence of events clearly revealed that Ex.P1 cheque was signed by the accused and it was given as blank signed cheque to DW2 as security for repayment of Rs.30,000/- borrowed from him previously. The lower Court also noticed that except signatures, other contents of Ex.P1 cheque and Ex.P5- promissory note are not in the handwriting of the accused and are in different handwriting. By leading the above evidence, the accused rebutted the presumption under Section 139 of the Act as to existence of any debt or liability in discharge of which he had drawn Ex.P1 cheque. The complainant could not prove that he lent Rs.1,30,000/- to the accused under Ex.P5 promissory note. He did not examine any attestors or scribe in Ex.P5. In those circumstances, the lower Court came to the conclusion that the complainant failed to show that the accused borrowed amount under Ex.P5 promissory note from him and to discharge the said debt, the accused had drawn Ex.P1 cheque in favour of the complainant. The said finding of the lower Court is neither perverse nor unjust nor unreasonable. This ground alone is sufficient to dismiss the complaint and to acquit the accused. 2. The lower Court further found that there was no valid service of notice under Section 138(b) of the Act on the accused of dishonour of Ex.P1 cheque. As pointed out earlier, Ex.P3 legal notice was sent by courier service and it was returned as per Ex.P4 envelope on the ground that no such person is available in that address. The lower Court observed that the complainant did not examine any person from courier service to prove the said endorsement on Ex.P4. Since service of notice under Section 138(b) of the Act need not necessarily be by post, Section 27 of the General Clauses Act has no application to service of such notice. The notice under Section 138(b) of the Act can be served by adopting any means or mode. Service of notice through courier service also is a valid service for the purpose of Section 138(b) of the Act. In this case, notice was returned unserved as no such person is available in that address. No evidence is let in by the complainant to show that the address noted on Ex.P4 notice cover was correct address and that it was managed to be returned by the accused with false endorsement. In that view of the matter, Khaleel Mahamood V. Padmavathi Handlooms, Venkatagiri[1] of this Court has no application to this case. In the absence of proof that the address mentioned in Ex.P4 cover is the correct address of the accused, the complainant is not going to succeed in this case to show that there was proper tender of notice to the accused. In these circumstances, the lower Court rightly came to the conclusion that there was no proper service of notice under Section 138(b) of the Act on the accused. There are no grounds either in law or on facts in this appeal to come to a different conclusion arrived at by the lower Court. 3. Hence, the Criminal Appeal is dismissed. ______________________________​ JUSTICE SAMUDRALA GOVINDARAJULU Dt:26.12.2011 ysk THE HON’BLE SRI JUSTICE SAMUDRALA GOVINDARAJULU CRIMINAL APPEAL No.2161 of 2004 Dt:26.12.2011 ysk [1] 2002 (1) ALD (Crl.) 208 (AP)