THE HON’BLE SRI JUSTICE N.R.L.NAGESWARA RAO
CRL.A.No.403 OF 2012
This appeal is filed against the order of acquittal of the accused dated 27.4.2007 passed in CC No.317 of 2002 by the Judicial Magistrate of First Class (Special Mobile), Karimnagar, whereby and whereunder the learned Judge acquitted the accused.
A complaint is filed on 19.6.2000 alleging that the accused approached the complainant to advance an amount of Rs.1,00,000/- towards his legal necessities and the complainant has given the said amount. Towards discharge of the said debt, the accused issued a cheque for Rs.75,000/- on 15.11.2001. On 5.3.2002 when the complainant presented the said cheque in the State Bank of Hyderabad, it was dishounorued. Thereafter, the complainant issued a legal notice and the same was returned. Subsequently prosecution was laid and the Court below after considering the material evidence found that there was no effective service of notice on the accused, acquitted the accused. Aggrieved by the said judgment, the present appeal is filed.
The point for consideration is whether the acquittal recorded by the Court below is legal and sustainable.
According to the prosecution case, Ex.P5-legal notice was sent to the accused on 1.4.2002 and it was not served on him. Ex.P6 is the un-delivered registered notice which contains the endorsement “as no such person in this house number, returned to sendor”. Therefore, according to the Court below there was no proper service on the accused.
It is true as contended by the counsel for the appellant that if notice is sent to the accused to his admitted address, presumption of due service and compliance with the provisions of 138 of the Negotiable Instructions Act, 1881 can be drawn. The Court below has taken into consideration the evidence of the complainant itself to the effect that he cannot say the address of the accused where he is residing.
As can be seen from the evidence of the complainant, at the time of borrowing of money, the accused was said to be residing at Vemulawada and by the time of the complaint, he was said to be residing at Karimnagar.
The counsel for the appellant contends that the accused has not entered into the witness box to prove that he was a resident of that place and in fact summons were served to the same address and consequently, dismissal of the complaint is not valid. There is no need for the accused to enter into the box since the complainant himself in his evidence stated that he cannot say the address of the accused where he is residing. In such circumstances, it is the duty of the complainant to adduce some evidence as to the residence of the accused in that particular place. The Court below has taken a view that there is no proper service of the legal notice which is a question of fact and there is no contrary evidence to come to a different conclusion, and accordingly, the Court below has given benefit of doubt to the accused. I do not find any valid reason to interfere with the order of acquittal passed by the Court below.
Accordingly, the criminal appeal is dismissed.