( 1 ) IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD CRIMINAL APPEAL NO. 270 OF 1999 Dattatraya Asaram Jagtap .. Appellant Age. Major, Occ. R/o. Gajanan Hsg. Society, M.I.D.C., Nagarpur, Ahmednagar. Versus 1. Girish Shriniwas Parolekar, .. Respondents Age. Major, Occ. R/o. Hotel Kinara, Nagar-Manmad Road, Sahyadri Chouk, MIDC, Ahmednagar. 2. State of Maharashtra Mrs. C.S. Deshmukh, Advocate for the appellant. Mrs. B.R. Khekale, A.P.P. for respondent No.2/State. CORAM : P.R. BORKAR,J. DATED : 21.11.2009 ORAL JUDGMENT :- 1. This is an appeal preferred by the original complainant being aggrieved by the order of acquittal passed by the Judicial Magistrate, First Class, Ahmednagar, in ( 2 ) S.T.C. No. 3613 of 1994, decided on 10.09.1996, whereby present respondent No.1 was acquitted of offence punishable under Section 138 of the Negotiable Instruments Act (for short “N.I. Act”). 2. It is case of present appellant that he owns a house property so also a Pan shop and has let out some of the rooms from his house. The accused owns hotel by name “Hotel Kinara” in Sahyadri Chowk, on Ahmednagar-Manmad Road, at Ahmednagar. It is stated that respondent No.1 who was owner of hotel Kinara had demanded Rs. 20,000/- for his business and therefore the complaint/appellant gave loan of Rs. 20,000/- to respondent No.1/accused on 10.02.1994. Towards said amount respondent No.1/accused issued a cheque dated 10.05.1994. The cheque was presented for encashment on 14.06.1994, but it was dishonoured on 17.06.1994. Therefore, notice was issued by the appellant to respondent No.1 on 20.06.1994. Respondent No.1/accused refused to accept notice and the notice came back with endorsement “not claimed”. Thereafter, the amount was not paid and therefore complaint was filed for commission of offence punishable under Section 138 of the N.I. Act. ( 3 ) 3. It is case of respondent No.1/accused that he is not owner of hotel Kinara. The transaction is not regarding hotel business as stated in the complaint. He has not received notice in question. He has no concern with hotel Kinara and therefore he be acquitted. 4. The learned Magistrate accepted the above said defence and acquitted respondent No.1/accused. As against said order, this appeal is filed. 5. In this case, in order to prove that the appellant is not owner of hotel Kinara and has no concern with it, one Prashant is examined as defence witness at Exh.51. He stated on oath that hotel Kinara in Sahyadri Chowk at Ahmednagar was owned by him. There is no partner in it. The hotel is situated in the property of one Balkrishna. He produced V.F. 7/12 extract at Exh.53. He further stated that presently he is running the hotel and maintaining account in Bank of Maharashtra. He produced copy of the bank-pass book on record. Thus, it is specifically proved that accused/respondent No.1 has no concern with Hotel Kinara and ( 4 ) the say of the appellant that loan was given for business of the hotel is false. The defence witness further stated that he knew the accused. He was his customer. Respondent No. 1/accused owns factory in M.I.D.C. by name “Mini Makers”. The accused has no authority to discharge any liability of hotel Kinara. The accused resides at Nagapur. The witness further denied that postal address of the accused is of hotel Kinara. 6. Evidence of Mahadeo Nagare, postman in M.I.D.C. Area, is at Exh.64. There is also evidence of one Shrikant Chitamber, who was postmaster of M.I.D.C. Post office at Ahmednagar. Both the witnesses stated that the accused does not reside at Hotel Kinara. In support of that envelope Exh. 65 is produced on record. It bears postal endorsement and it shows that said envelop sent to Girish Shrinivas Parulekar was initially having address of hotel Kinara and that was not found to be address of the accused. 7. The learned advocate for the appellant argued before this Court that notice of this Court was served on respondent No.1 on the address of hotel Kinara, but that is ( 5 ) no evidence. Adv. Mrs. C.S. Deshmukh for the appellants also referred to xorox copy of a document which is bail bond alleged to have been executed by respondent No.1 on 29.08.1994 in the Court. This document was also not put to the accused as evidence against him nor his explanation on it is called for. It is well settled principle of the law that no document which is not brought to the notice of the accused under Section 313 of Cr.P.C. can be used as evidence against him. Accused has right to explain, if any document is sought to be proved against him. It does not appear that in the Trial Court bail bond was used as piece of evidence by the complainant. So, in the facts and circumstances, it cannot be said that the Trial Court committed error in holding that in view of the evidence of the owner of hotel Kinara and other evidence, it is duly established that there was no proper service of notice on respondent No.1/accused and further that there was no transaction in respect of the hotel business. Even if for a moment it is held that the address of the notice is correct, still question arises whether the complainant has come with a true case regarding giving loan in connection with hotel Kinara to respondent No.1. There is clear evidence of the defence witness, who claimed to be ( 6 ) owner of hotel Kinara and that is not denied in the cross- examination. 8. The learned advocate for the appellant relied upon two authorities. First is K. Bhaskaran V/s. Sankaran Vaidhyan Balan and anr., AIR 1999 S.C. 3762. In that case under Section 27 of General Clauses Act, it was held that where notice is returned by post as “unclaimed”, service can be presumed to be proper. But it is also clear from the observations that the notice has to be issued on the correct address and then such presumption can be drawn and we find observation to that effect in para 24. Similarly, in the case of C.C. Alavi Haji V/s. Palapetty Muhammed and Anr, 2007 Cri.L.J. 3214, it is held that where notice has received unserved, though issued at correct address, there is presumption under Section 27 of the General Clauses Act, but there also it will have to be proved that address is correct. In this case, by positive defence evidence, the accused has attempted to prove that the address of hotel Kinara given while sending notice was not the correct address. 9. Considering the facts and circumstances and ( 7 ) evidence of defence, it appears that the discretion is properly exercised by the Trial Court while acquitting the accused. In the circumstances, it is not a case where interference in the judgment of the Trial Court is called for. Hence, the appeal is dismissed. Parties to bear their own costs. [P.R. BORKAR,J.] snk/2009/NOV09/crap270.99