HON'BLE SRI JUSTICE K.SURENDER
CRIMINAL APPEAL No.320 OF 2010
JUDGMENT:
1. The appellant is questioning the acquittal of the 2nd respondent for the offence under Section 138 of the Negotiable Instruments Act vide judgment in CC No.1000 of 2005, dated 16.09.2009 passed by the IV Additional Chief Metropolitan Magistrate, Hyderabad on the following grounds:
i) The complainant/P.W.1 failed to discharge his burden that there is a legally enforceable debt for the cheque, as the said cheque was given in blank on the basis of the evidence adduced.
ii) The other ground is that the accused was resident of H.No.3-3-730, Esamia bazaar, whereas the legal notice was sent to H.No.3-3-728.
2. Learned Magistrate found on the basis of public documents Exs.D1 to D4, which were much prior to lodging of the complaint, pertaining to the years 2001 and 2003 reflecting that the address of the accused is H.No.3-3-730.
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3. Learned counsel appearing for the appellant would submit that in fact the premises bearing H.No.3-3-728 and 3-3-730 are part of one building and accordingly, findings of the learned Magistrate that it was sent to wrong address is not tenable.
4. Without going into the correctness or otherwise of the finding of the learned Magistrate regarding the outstanding, that there was no legally enforceable debt, the finding of the learned Magistrate that notice was sent to the wrong address cannot be said to be improper.
5. Admittedly, the notice was sent to the address with 3-3-728, however, it is not in dispute that the accused was resident of 3-3- 730, for the said reason, it cannot be assumed by the learned Magistrate that though wrong house number is given, it would have been served on the accused for the reason of both the house numbers being in one compound.
6. It is for the complainant to prove service of notice by adducing evidence and also examine the postmaster, if necessary. In the present case, when admittedly notice was sent to the wrong 3 address, the prosecution under Section 138 of the Negotiable Instruments Act, cannot be maintained.
7. Accordingly, Criminal Appeal is dismissed. As a sequel thereto, miscellaneous petitions, if, pending, shall stands closed.
__________________ K.SURENDER, J Date: 04.11.2022 kvs 4 HON'BLE SRI JUSTICE K.SURENDER CRIMINAL APPEAL No.320 of 2010 Date: 04.11.2022.
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