1 IN THE HIGH COURT OF BOMBAY AT GOA CRIMINAL APPEAL NO. 60 OF 2006 M/s Damu Datta Naik Karmali A proprietory concern, Represented by its proprietor Shri Bhaskar D.N. Karmali, Major, Indian National, r/o House no. 74, Bansai, Curchorem-Goa 403 706 .... Applicant V/s 1. Shri Mariano Anthony Rodrigues, Truck Owner, House No. 517, 'God's Gift' Badegal, Mapa, Panchawadi Goa. 2. S T A T E .... Respondents Mr. P.A. Kholkar, Advocate for the Appellant. Mr. A.F. Diniz, Advocate for Respondent No.1. Mr. C.A. Ferreira, Public Prosecutor for Respondent No.2. CORAM : R.M.S. KHANDEPARKAR, J. DATE : 8 th FEBRUARY, 2008 ORAL JUDGMENT : Heard. 2. The present appeal arises from the judgment and order dated 18/03/2006, whereby the complaint filed by the appellant under Section 138 of the Negotiable Instruments Act, 1881 ('the Act', for short) has been 2 dismissed on two grounds. Firstly, that the appellant is not entitled for presumption about the service of notice which is statutorily required to be given before initiating proceedings under Section 138 of the Act and, secondly, that the Exhibit 36 which was claimed by the appellant to be the confirmation of the balance amount due from the respondent was a concocted and fabricated piece of evidence and that, therefore, the appellant has miserably failed to prove the offence beyond reasonable doubt. 3. The learned Advocate for the appellant while assailing the impugned judgment and order submitted that the learned Magistrate erred in holding that the appellant is not entitled for the presumption regarding the service of notice upon the respondent, when the evidence on record proves to the contrary and further he erred in holding that the electoral roll-Exhibit 47 is the conclusive evidence of the correct address of the respondent no.1, particularly in view of the fact that the respondent himself in the revision application filed before the Sessions Court had also disclosed the same address on which the appellant had issued the notice. Referring to the merits of the case, he submitted that the trial Court erred in acquitting the respondent without even analysing the materials on record and totally ignoring the provisions of law comprised under Section 138 of the Act. He further submitted that the trial Court also erred in holding that Exhibit 36 was concocted piece of evidence, when it was nobody's case that it was so and the 3 fact that the signature on the said document was clearly admitted by the respondent. Reliance was sought to be placed in the decisions in the matter of C.C. Alavi Haji V/s. Palapetty Muhammed & Anr. reported in 2007(6) SCC 555, Purushottam V/s. Manohar K. Deshmukh & Anr. reported in 2007(1) Mh.L.J. 210, K. Bhaskaran V/s. Sankaran Vaidhyan Balan & Anr. reported in 1999 (7) SCC 510, D. Vinod Shivappa V/s. Nanda Belliappa reported in 2006(6) SCC 456, Shri Mohamed Ali Mulla V/s. State of Goa & Anr. reported in 2006 ALL MR (Cri) 34, Armstrong Builders & Developers V/s. Vishvanath Naik reported in 2007(1) Mh.L.J. 787. 4. On the other hand, the learned Counsel appearing for the respondent submitted that the finding by the trial Court that the notice was not properly addressed to the respondent and that, therefore, the appellant was not entitled for the presumption, has been arrived at on account of failure on the part of the appellant to address the notice at the correct address, and as such, there was no obligation on the part of the respondent to make the payment pursuant to the service of the summons in the matter. He further submitted that in respect of the electoral roll-Exhibit 47, which gave correct address of the respondent, no fault can be found with the trial Court in relying on the electoral roll to ascertain the correct address of the respondent. The view taken by the trial Court, therefore, cannot be found fault with and the present proceedings being appeal against acquittal, it would not be appropriate for 4 this Court to interfere in the impugned order merely because different view on fresh analyses of evidence is possible. He further submitted that though the impugned order is not happily worded as far as findings are concerned, the ultimate decision being clearly borne out from the records no interference is required by this Court. Hence, the appeal be dismissed. 5. Reliance is also sought to be placed in Sarav Investment & Financial Consultants Pvt. Ltd. & Anr. V/s. Llyods Register of Shipping Indian Office Staff Provident Fund & Anr. reported in 2008(1)Bom.C.R.(Cri.)93 and M.S. Narayan Menon @ Mani V/s. State of Kerala & Anr. reported in 2006 (6) SCC 39 as well as in Ramesh sadashiv Khatpe & Ors. V/s. State of Maharashtra & Ors. reported in 2007(1) Bom.C.R.(Cri.)993. 6. As regards the first ground of challenge which relates to the presumption arising regarding the service of notice and the contention about the failure to consider the same by the trial Court, the finding arrived at by the trial Court on this aspect is that a notice was required to be given to the drawer on correct address and in the case in hand, the appellant knew that the accused was residing at Bansai, Curchorem and yet the notice was sent to the address at Mapa, Panchawadi and, therefore, the address to which the notice was sent was rather doubtful, more particularly, in view of the correct address of the accused disclosed in the electoral roll-Exhibit 47 and hence there was 5 non-compliance of one of the essential ingredient of Section 138 of the said Act. In short, the finding relates to incorrect address in relation to the statutory notice under Section 138 of the said Act. 7. If one peruses, the evidence on record in this regard, it is apparent that there is no dispute that the place to which the notice was sent was in fact the place of residence of the accused for sometime and it is the case of the accused himself that he shifted his residence from Mapa, Panchawadi to Bansai, Curchorem about four years prior to October, 2005. Undisputedly, the notices were sent on 15/12/2003 and 4/01/2004. The evidence on record, however, discloses the categorical assertion on the part of the appellant that the notices were sent at Mapa, Panchawadi and not on the address of Bansai, Curchorem, as the complainant knew that at the time of issuance of notice, the accused was residing at Mapa, Panchawadi, and only for a period of six months prior to October, 2005, the accused had been residing at Bansai, Curchorem. Undoubtedly, there was a suggestion put in the course of cross- examination that the accused had been residing at Bansai, Curchorem for about four years prior to October, 2005 which was denied by the complainant. In that regard, apart from production of electoral roll, no other evidence was produced by the respondent. 8. It cannot be disputed that the electoral roll is one of the piece of 6 evidence which discloses the place of residence of the party, whose name figures in the electoral roll, as the electoral roll refers to the houses with the occupants, who are entitled to cast vote. Irrespective of such entries in the electoral roll, however, factually there may be totally different situation in relation to some of the persons whose names figure in electoral roll and when there is a challenge thrown to such entries by denying the claim of party, making such claim on the basis of entry in the electoral roll, it is not sufficient for such party merely to rely on the electoral roll, but produce evidence to satisfy his case about his actual place of residence at the relevant time. Admittedly, no such evidence has been led by the respondent-accused, apart from producing the electoral roll. In the facts which are being revealed from the records, such an effort on the part of the accused was certainly expected, more so, on account of the fact that there was a categorical assertion on the part of the complainant that at the relevant time of issuance of notices, the accused was residing at Mapa, Panchawadi and it is not in dispute that Mapa, Panchawadi was the residence of the accused for sometime prior to his shifting to Bansai, Curchorem. Once there was no dispute on the part of the accused that he was the resident of Mapa, Panchawadi and thereafter he had shifted his residence to Bansai, Curchorem and there was a dispute as to time factor of his shifting from Panchawadi to Curchorem, the burden was squarely upon the accused to establish the same by leading necessary cogent evidence. Mere production of the electoral roll 7 in that regard cannot be presumed to be conclusive evidence of his residence at Bansai, Curchorem at the relevant time. 9. In the above circumstances, therefore, it cannot be said that the notice was sent at the incorrect address, as such. In the case in hand, it is not a matter of incorrect address but the dispute was as regards the actual place of residence of the accused. Undisputedly, the place where the notices were sent was also the place of residence, for some time, of the accused person. The assertion of the complainant that it continued to be so, even at the time when notices were sent and in the absence of clear evidence being produced by the accused regarding the time of shifting from Panchawadi to Bansai, it is to be presumed that the notices were sent at the correct address. Undisputedly, trial Court has not analysed this aspect at all while holding that the notices were not sent at the correct address. 10. The testimony of the complainant, in the course of the cross- examination, on this aspect reads thus: “I know that the accused resides at Bansai, Curchorem. To the question that you did not sent the notice to the accused at his address of Bansai, Curchorem, I say that at the time of issuing the notice he was residing at Mapa, Panchawadi. I say that accused residing at Bansai, Curchorem since last six months. It is not true to suggest that the accused is residing at Bansai, Curchorem for last four years. To the suggestion that the address of the accused as shown in the electoral roll is Bansai, Curchorem, I say that I do not know. Shown to the witness the certified copy of the electoral roll and the witness 8 was told that as per the said roll the address of the accused is shown as Bansai, Cacoda, the witness states that the electoral roll may be taken on record, the same is taken on record and marked as Exhibit 47. It is not true to suggest that inspite of the knowledge that the accused is residing at Bansai, Cacoda I have deliberately sent him the notice at Mapa, Panchawadi.” 11. Even the suggestion in relation to the electoral roll would reveal that the same was not to establish the actual place of residence of the accused at the relevant time, but it was merely to rely upon the same to contend that the notice ought to have been addressed to the Bansai, Curchorem address on the ground that the name of the accused figured in the electoral roll with reference to the said address. Besides, once it was not in dispute that Mapa, Panchawadi was also the place of residence of the respondent, it was for the respondent to prove with cogent evidence on record that at the relevant time the place of residence of the respondent was Bansai, Curchorem and it was to the knowledge of the appellant. There was no cogent evidence placed on record that at the relevant time the accused was residing at Bansai, Curchorem, as sought to be contended on behalf of the respondent. The materials on record clearly support the contention raised on behalf of the appellant that at the relevant time there was no material to doubt that the notices in question were sent at the correct address of the respondent. 12. Added to the above, the decision of the Apex Court in C.C. Alavi Haji is also squarely applicable to the facts of the case. It is not in dispute that the 9 notice was served upon the accused on Mapa, Panchawadi address. It is also not in dispute that the respondent-accused was residing at one time at Mapa, Panchawadi at the given address. Being so, the essential ingredient of Section 138 of the said Act, regarding the service of statutory notice, was fully established. In this background, when the summons were served upon the respondent, certainly, respondent could have tendered the amount claimed, even without prejudice to his rights and subject to the decision in the matter. However, the respondent took pleasure in disputing the service and raising technical plea of non-service of notice, entirely to defeat the claim of the appellant on such technical grounds. Undoubtedly, the requirement of service of statutory notice is an essential ingredient of Section 138. In that respect, it may not be a technical ground, but when the service of notice on the address, which was undisputedly the address of the accused at one time, without leading cogent evidence about the shifting from that place to another place at relevant time, inspite of specific plea regarding non-service is taken, it would certainly amount to a technical plea. 13. The Apex Court in C.C. Alavi Haji’s case had clearly held that; “Any drawer who claims that he did not receive the notice sent by post, can, within 15 days of receipt of summons from the court in respect of the complaint under Section 138 of the Act, make payment of the cheque amount and submit to the court that he had made payment within 15 days of receipt of summons (by receiving a copy of complaint with the summons) and, therefore, the complaint is liable to be rejected. A person who does not pay within 15 days of receipt of the summons from 10 the court along with the copy of the complaint under Section 138 of the Act, cannot obviously contend that there was no proper service of notice as required under Section 138, by ignoring statutory presumption to the contrary under Section 27 of the GC Act and Section 114 of the Evidence Act. In our view, any other interpretation of the proviso would defeat the very object of the legislation.” 14. The Apex Court, therefore, has clearly held that in cases where the accused disputes the receipt of notice, sent by post, can certainly deposit the amount claimed within 15 days of receipt of the summons. Undisputedly, obligation would be in relation to undisputed amount claimed by the complainant. In case of disputed amount of claim, when the accused is unable to produce any cogent evidence about his actual residence at a place different from the one where the notice was sent, can deposit under protest and contest the proceedings. In any case, it is not in dispute that in the case in hand, no such attempt to deposit the amount either undisputed or otherwise was ever made by the respondent. It was, however, sought to be contended that since it was the contention of the respondent that the notice was sent at the incorrect address, there was no obligation on the part of the respondent to tender any such money in terms of the rulings in C.C. Alavi Haji’s case. It is true that there is no statutory obligation to pay such amount. However, bearing in mind, the law laid down by the Apex Court in order to justify the bona fide on the part of the respondent, nothing prevented the respondent from complying with the said requirement in the case in hand. 11 15. In the facts and circumstances of the case, therefore, the decision which is sought to be relied upon on behalf of the respondent i.e in the matter of Sarav Investment, is of no help. Therein, the notice was not sent under registered cover with acknowledgment due. It was not even sent by couriers’ service. It was sent through the employees belonging to M/s. Mulla & Mulla & Craigie Blunt & Caroe, and the Advocate for the complainant was asked to serve the notice and service of notice was sought to be proved by way of affidavit of service. In the background of those facts, it was observed by the Apex Court that service of notice is a part of the cause of action for lodging the complaint and actual communication of such a notice is to be established. Considering the facts of the case, it was observed that the affidavit of service filed on behalf of the complainant, disclosed that the deponent had nowhere stated as to when he had gone to serve the accused; as to what was the address at which it was served, and when he had visited the place for service. In the background of those facts, even factually there was no proof of service of notice. Being so, the appellant is justified in placing reliance in the matter of Vishvanath Naik’s case, Shri Mohamed Ali Mulla’s case, D. Vinod Shivappa’s case, K. Bhaskaran’s case to which it is not necessary to make elaborate reference, considering the view I am taking in the matter. 16. As regards the second ground of challenge which relates to failure on the part of the trial Court to analyse the materials on record in proper 12 perspective, the learned Advocate for the respondent has brought to my notice the decision of the Apex Court in M.S. Narayana Menon’s case, wherein it was held that the High Court had erred in exercising appellate jurisdiction against the judgment of acquittal, ignoring the settled principles of law that where two views are possible, the appellate Court should not interfere with the finding of acquittal recorded by the court below. 17. In the case in hand, bare perusal of the impugned order would disclose that it needs to be set aside and remanded to the trial court with the specific direction to analyse the evidence on record in proper perspective and to pass a reasoned judgment without ignoring the mandate of law comprised under Chapter XXVII of the Code of Criminal Procedure, 1973. Any judgment to be delivered by the trial Court should disclose the facts placed on record by either of the parties, the points which arise for determination, the analysis of the evidence led by the parties and the reasons for the decision of the Court with reference to the points for determination. Perusal of the impugned judgment nowhere discloses any of these ingredients being specified. The impugned judgment nowhere summarises the evidence led by the parties. Mere reference to one or two sentences in the evidence led before the trial Court cannot be said to be taking into consideration of the evidence before the trial Court. In cases where the judgment can be subjected to appeal, the appellate Court is entitled to know whether the trial Court has considered all 13 the relevant materials on record or not, while arriving at the findings arrived by the trial Court. I do not find any specific finding on the question which arises in the matter having been arrived at by the trial Court in the case in hand. In the circumstances, therefore, though various contentions are sought to be raised, it is difficult to accept the contention raised on behalf of the respondent that a definite view has been taken by the trial Court on the basis of analysis of the evidence which would be sufficient for this Court to refrain from interfering in the impugned judgment. The well established principle is that the appellate Court should be slow in interfering in the judgment regarding the acquittal of the accused in criminal matters. However, once it is apparent from the judgment that trial Court has totally ignored the appreciation of evidence in proper perspective and merely by referring to one or two sentences from here and there in the evidence, has jumped to the conclusion for acquitting the accused from serious charge on the part of the accused to comply with the requirements of his obligation under Section 138 of the said Act, such a judgment cannot be sustained and needs to be set aside and the matter remanded to the trial Court to consider the rival contentions on proper appreciation of evidence on record after formulating points for determination and to pass a reasoned order. In the circumstances, therefore, without expressing any opinion on merits of the case, the impugned judgment needs to be set aside and the matter required to be remanded for the reasons stated above. 14 18. Attention was drawn to the decision of the learned Single Judge of this Court in Mohammed F. Shahdat’s case contending that even if there is a slight change in the address on the notice, it would be a case of incorrect address. Para 3 of the said decision reads thus; “The learned Magistrate noted that correct address of the firm and all the respondent nos. 1 to 3 is “510 Kalbadevi Road” while on the envelope the notice address was “501 Kalbadevi Road”. Admittedly, number was wrong. It should have been “510”. It was argued before the learned Magistrate that summons were also issued to the accused persons giving number of the shop as “501 Kalbadevi road” but it was still served. However, the learned Magistrate noted that even though the summons address was “501 Kalbadevi Road”, the service report from police revealed that it was actually served on “510 Kalbadevi Road”. The learned Magistrate noted that the policemen could make search on the basis of name but the postal authorities are not expected to do that and in any case, address was not correct and therefore, it could not be said that the notice was wrongly refused or returned by the postal authorities.” 19. Referring to this decision, it was sought to be contended that this Court has already held that even though there was a slight mistake in the number of the house while sending the statutory notice under Section 138, refusal of such notice cannot be said to be wrong refusal and therefore it would amount to sending notice to incorrect address and hence non- compliance of basic requirement of Section 138 of the said Act. At this stage, before dealing with the contentions sought to be raised in this regard and with utmost regret to the learned Single Judge in Mohammed F. Shahdat’s case, it would be worthwhile to refer to Sarav Investment’s case, particularly, paragraphs 17 and 18 of the judgment, which read thus; 15 “17. Service of notice in this case was not sought to be effected under registered cover with acknowledgment due. It was sought to be done by the agent of the complainant itself. The agent of the complainant sought to serve the said notice through their own employees. 18. The notice, was only required to be dispatched. Its contents were required to be communicated. Communication to the appellant about the fact of dishonouring of the cheques and calling upon him to pay the amount within 15 days is imperative in character. It is not a case, where, actual communication was not necessary. Service of notice is a part of cause of action for lodging the complaint.” (emphasis supplied). 20. Plain reading of the above paras in Sarav Investment’s case would reveal the basic requirement in relation to the statutory notice. The service thereof should be effected and not mere dispatching and sending the notice to the accused. What is relevant is actual service of such notice, so that the accused is made aware that he is required to comply with the requirement of payment or regarding the demand made therein, within 15 days from the date of communication of that notice to him.