HONOURABLE SRI JUSTICE G.V.SEETHAPATHY CRL.A.No.594 of 2005 Between: Ravella Koteswara Rao. ……….Petitioner and Vempati Kotaiah and another. ………..Respondents HONOURABLE SRI JUSTICE G.V. SEETHAPATHY CRIMINAL APPEAL No.594 of 2005 JUDGMENT: This Criminal appeal is directed against the judgment, dated 22-12-2004, delivered in C.C.No.268 of 2003, on the file of II Additional Judicial First Class Magistrate, Ongole, wherein, the accused, 1st respondent herein, was found not guilty of the offence under Section 138 of the Negotiable Instruments Act (for brevity ‘the Act’) and was acquitted thereof. 2. Heard the learned counsel for the appellant. None appeared for the accused-1st respondent. Perused the records. 3. The complainant, who is the appellant herein, filed a complaint against the accused alleging that on 15-08-2002, the accused borrowed an amount of Rs.1,37,000/- from the complainant and executed a hand letter agreeing to repay the same with 24% per annum and subsequently in discharge of the said debt, the accused gave a cheque for Rs.1.00 lakh on 02-04-2003 towards part payment and when the complainant presented the same in Vijaya Bank, Chilakaluripeta, it was dishonoured with an endorsement “insufficient funds”. Thereafter, the complainant got issued notice to the accused on 26-04-2003, but the accused intentionally evaded the notice. 4. The accused appeared before the trial Court and denied the offence. 5. In support of his case, the complainant examined himself as P.W.1 and examined P.Ramanjaneyulu as P.W.2 and marked Exs.P-1 to P-5. The accused examined one Shaik Subhani as D.W.1 and no documents were marked on his side. 6. On consideration of the evidence on record, the learned Magistrate held that the cheque, Ex.P-2, was materially altered both in the amount, changing the same from Rs.1000/- to Rs.1.00 lakh and also in the date, altering the same from 01-04-2003 to 02-04-2003. The learned Magistrate, further held that the complainant has not come to the Court with clean hands and he failed to establish that Ex.P-2, cheque, was issued by the accused towards debt due under Ex.P-1, hand letter. Accordingly, the accused was acquitted on the ground that the ingredients of the offence under Section 138 of the Act are not made out. Aggrieved by the said order of acquittal, the present appeal is filed by the complainant. 7. According to the complainant, the accused borrowed Rs.1,37,000/- under a hand letter, Ex.P-1, and in partial discharge of the said debt, he issued a cheque, Ex.P-2, for Rs.1.00 lakh on 02-04-2003. When he presented it for encashment, the said cheque was returned by Memo, Ex.P-3, on the ground of insufficient funds. The complainant got issued registered notice under original of Ex.P-4, dated 26-04-2003 and the same was returned un-served under Ex.P-5 on the ground that the addressee was continuously absent. 8. In the course of the examination under Section 313 Cr.P.C., the accused stated that he issued a cheque in favour of P.W.1 for a sum of Rs.1,000/- and the hand letter, Ex.P-1 is fabricated. It is also suggested to P.W.1 in the cross-examination that he materially altered the cheque, Ex.P-2, by changing the date and amount and that Ex.P-2, cheque, was not issued towards discharge of any legally enforceable debt. Though P.W.1 denied the suggestion, the mere look at the cheque, Ex.P-2, would show that the date is altered from 01-04-2003 to 02-04-2003 and the amount is also altered from Rs.1,000/- to Rs.1,00,000/-. It is also significant to note that in the notice, Ex.P-4, the date or number or the place of issuance of the cheque were not mentioned, at the first instance, and they are subsequently interpolated. 9. According to the accused, he was doing contract works in Panchayat Raj Department and the complainant was working as a sub contractor and when the accused was bed ridden due to an accident, the complainant took the blank signed cheques from him for the purpose of making payments towards the sub contract work done by the complainant. P.W.1 also admits that he worked as sub contractor under the accused and he presented three cheques for Rs.1,66,464/-, 34,271/- and Rs.29,326/- received from the accused and the same were encashed subsequent to the hand letter, Ex.P-1. 10. D.W.1 also deposed that he worked under P.W.1 as mason, and for the said work, P.W.1 was due in a sum of Rs.1,000/- to D.W.1, and for the said amount, P.W.1 took him to the bank stating that he is going to present the cheque issued by the accused for Rs.1,000/- in favour of P.W.1, and P.W.1 altered the same to Rs.1.00 lakh. P.W.2, however, corroborated the testimony of P.W.1 by deposing that he scribed the letter, Ex.P-1, in the presence of P.W.1 and the accused, at the house of the P.W.1 and that the accused signed the same. 11. As rightly observed by the learned Magistrate, the testimony of P.Ws.1 and 2 would go to show that Ex.P-1, letter, was executed by the accused. But however, there is no legally acceptable evidence to show that the cheque, Ex.P-2, was issued in discharge of the liability due under Ex.P-1. The material alterations, which are manifest from Ex.P-2, even to the naked eye, certainly create a doubt about genuineness of the document, Ex.P-2 itself, especially in the light of the evidence of D.W.1. The complainant, has therefore, failed to discharge initial burden cast on him to show that Ex.P-2 was issued in discharge of legally enforceable debt due under Ex.P-1 and when it is so, the question of drawing presumption contained under Section 138 of the Act in favour of the complainant does not arise. 12. That apart, the notice, Ex.P-5, was returned un-served with an endorsement that the addressee was continuously absent. As per the address mentioned in Ex.P-1, the accused was a resident of 3rd line, Padaripuram, Chilakaluripeta Mandal, Guntur District. But the notice, Ex.P-5, was addressed to Chinthapallipadu village, Yaddanapadu Mandal, Prakasam District. It is not the evidence of P.W.1 that there has been a change of address of the accused subsequent to Ex.P-1. P.W.1 has not chosen to issue any further notice to the correct address of the accused. It is not a case where notice was addressed to correct address and it was returned as refused or not claimed. Ex.P-5 was returned on the ground that the addressee was not in the village and his address is not known. In the face of such postal endorsement, it cannot be said that there has been proper service of notice on the accused nor can it be deemed that there was service of notice on the accused. It is well established proposition that service of statutory notice as contemplated under Section 138 (b) of the Act is mandatory as such service of notice has direct bearing on the cause of action itself for filing the complaint. In the absence of service of such notice, complaint itself is not maintainable. 13. Under those circumstances, it is held that the learned Magistrate has rightly acquitted the accused holding that the ingredients of the offence under Section 138 of the Act are not made out and consequently, acquittal of the accused does not call for interference by this Court. 14. In the result, the Criminal Appeal is dismissed. _____________________ 24th September 2009 kvr