1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY NAGPUR BENCH : NAGPUR. Criminal Appeal No. 726/2008 ( Nilesh Narayandas Taori .vs. Laddha Brothers through Ghanshyam s/o Motiram Laddha ) ---------------------------------------------------------------------------------------------- --- Office Notes, Office Memoranda of Coram, appearances, Court's orders or directions Court's or Judge's orders. and Registrar's orders Mr. A.P. Chaware, Advocate for the Appellant. Mr. S.D. Harode, Advocate for Respondent. CORAM : P.D. KODE, J. DATED : DECEMBER 19, 2009 1. Heard. 2. The appellant/original complainant in Summary Criminal Case No. 6254 of 2005 of the Court of 4th Court of JMFC Amravati, has preferred present appeal against judgment and order dated 1.8.2008 passed acquitting respondent-accused in said case from accusation of commission of offence punishable under Section 138 of the Negotiable Instruments Act. 3. In the said case complainant amongst other has mainly alleged that at the relevant time respondent was carrying out business of grains under name and style as Laddha Brothers at New Cotton Market, Yard No.2, APMC Amravati. The appellant was also engaged in similar trade and both of them were having cordial relations. 4. The respondent was then in need of Rs. 50,000/- for his business and had sought such an amount from the appellant. Having regard to 2 relationship then prevailing in between them, the appellant had advanced such an amount to him. The respondent had given a cheque in the sum of Rs. 50,000/- dated 16,7,2005 bearing no. 885885 drawn on Khamgaon Urban Cooperative Bank Ltd. Itwara Branch for returning the said amount. 5. The appellant, as per the instruction of respondent, had presented the same for encashment on 16.7.2005 with Peoples Co-operative Bank Ltd. , Market Yard Branch, Amravati. The said Bankers had returned the same with intimation of the account of the respondent having been closed. 6. The appellant had alleged that since the respondent was not having sufficient amount in his account, he had deliberately closed said account. The appellant had issued a demand notice dated 6.8.2005 under the registered post AD and under postal certificate regarding dishonour of said cheque. However, the respondent had refused to accept the same on 11.8.2005 and hence Postal Authorities had returned same to the appellant. Since the respondent had failed to pay demanded cheque amount within 15 days of receipt of notice, the appellant has instituted the said complaint. 7. After the trial, the complaint came to be dismissed for the reasons given in the judgment impugned wherein the trial Court after assessment of evidence amongst other had come to the conclusion of appellant having failed to prove of the notice as contemplated under Section 138 of the N.I. Act being issued and served upon the correct address of the respondent and in consonance with such finding arrived trial court has further concluded of the 3 respondent having proved of the cheque being not given in discharge of any legal liability. The trial Court thereon had dismissed the complaint and acquitted the respondent as narrated hereinabove. 8. The learned counsel for the appellant has assailed the judgment on the counts of the trial Court having failed to take into account/appreciate that (i) notice in question issued to the respondent upon his address of Bachharaj Plot being refused by the respondent and the said fact being apparently seen/established by envelop of the notice returned by Postal Authorities at Exh.38 and in spite of the same having erroneously concluded of the said notice being not issued/served upon the respondent at correct address; (ii) the process of the complaint was served upon the respondent upon the same address of Bachharaj Plot and (iii) it was not the case of the respondent that he was not residing at the said address. 9. The learned counsel thus urged that after taking into consideration the evidence adduced at the trial, in the light of the aforesaid factors, the finding arrived at by the trial Court of the notice in question being not served upon the respondent is manifestly erroneous and same cannot be sustained. In view of the same further finding arrived on the said erroneous basis of cheque being not issued in discharge of legal liability being established by the respondent or further conclusion of respondent having not committed the offence accused of and ordering his acquittal being patently illegal, unsustainable and is liable to be set aside by allowing the appeal and by passing appropriate order as warranted on the basis of the 4 evidence surfaced at the trial. 10. The learned counsel for the respondent countered the aforesaid submissions by stating that the evidence reveals that the appellant has sent the notice at three addresses and out of them, only the notice sent upon address of Bachharaj Plot was returned with an endorsement “not claimed”. The learned counsel urged that the appellant having not led an evidence that at the relevant point the respondent was residing at the said address, merely because the said notice has been returned as not claimed, would not be termed as a good service. He further urged that merely because the process of a complaint was served upon the respondent at the same address, would not be a deceive fact for supporting relevant submission canvassed as the process was served upon the respondent at all together different point of time i.e. much prior to issuing of the notice. He further urged that in absence of any evidence of respondent residing at Bachharaj Plot at the time of sending notice, would not lead to legitimate conclusion of notice being then refused by him or consequent conclusion of the same being deemed to have been served upon him. 11. He further contended that the submission of the learned counsel for the appellant to the effect is absurd as it was not the case of the respondent that he was not residing at the relevant address at the relevant time. The learned counsel contended that at criminal trial the question of respondent making any such case would have arrived only in the event of the appellant having established such facets. He urged such facets being not established by the appellant, 5 there would not have arisen any such question of respondent making any such case as contended by the learned counsel for the appellant. He urged thus the aforesaid facets clearly reveals that the reasoning given by the lower Court in paras 11 to 15 cannot be faulted and on the contrary such a finding has been rightly arrived by the trial Court. He thus contended that there being no merit in the appeal, the same deserves to be dismissed. 12. In the light of the submissions advanced by both the parties the only point which arises for my consideration is : Whether the finding recorded by the learned trial Court regarding the notice being served upon the respondent being not proved by the appellant is erroneous or otherwise ? 13. Having regard to the controversy upon which the submissions were centered , the evidence of the appellant was carefully examined in light of Exh.38 on the record to ascertain whether the refusal of the notice issued can be said to be a deemed service of notice upon the respondent. The said examination leads to no other conclusion than as recorded by trial Court. The same is obvious as the evidence of the complainant nowhere reveals any claim either precisely or even baldly staked by the complainant of respondent being residing at Bachharaj Plot in a particular period in which the notice was issued to the respondent and still respondent having refused the same. Having regard to the same and further evidence of complainant also revealing that he had issued the notice upon two more addresses itself denotes of the appellant himself being not certain of 6 relevant facet i.e. the place of the residence/business of the respondent. Having regard to the same, it is difficult to accept that merely because of the refusal of notice sent at the address of Bachharaj Plot, any conclusion can be drawn of the respondent having refused the said notice. The same is apparent as certainty is soul of criminal trial and the burden of proving part of necessary ingredient constituting offence i.e. service of the notice was upon the appellant. 14. In the same context the another submission canvassed by learned counsel for applicant that process of the complaint was served upon the respondent upon the said address of Bachharaj Plot on which the notice sent had been returned unserved and hence the same should have been held to be refused by the respondent though apparently appears to be attractive still clearly appears to be devoid of merit after taking into consideration all the relevant facets pertaining to the service of the said notice contemplated under Section 138 of the Negotiable Instruments Act. Needless to add that notice could have been deemed to have been served upon the respondent only in event of such a facet had been spelt out from the evidence of the appellant. Thus from the said angle residence of the respondent at the said address at the time of serving process clearly appears to be immaterial in absence of the evidence of the appellant that at the time of issuing a notice and/or when the same had reached the said address , the respondent was residing at the said address. As stated earlier in absence of such an evidence of the appellant and in view of burden of establishing 7 relevant facets being upon the appellant and the appellant having failed to discharge the same, there will not survive any question of it being not the case of the respondent that he was not residing at the said plot, has tried to be canvassed by learned counsel for the appellant. 15. The evidence of the appellant considered as a whole, also do not reveal the notice being served upon the respondent in any other manner i.e. the same being served upon him upon the other address for which the same was issued. As a matter of fact, the notice sent at such address seems to have not been received back or at least the same has not been placed upon the record. Having regard to the same the finding arrived by the trial Court of the appellant having failed to establish of notice being issued and served upon the correct address of the respondent cannot be said to be erroneous or illegal. 16. In view of the same the point for consideration framed will be required to be answered accordingly. As a consequent to said conclusion arrived and the further finding recorded by the trial Court based upon the same also cannot be faulted nor the consequent order of acquittal of the respondent based upon the said finding can be said to be erroneous. The same will lead to the conclusion of there being no merits in the appeal presented and as such the appeal will be required to be dismissed and the same stands dismissed accordingly. JUDGE halwai