HON'BLE SRI JUSTICE K.SURENDER
CRIMINAL APPEAL No.103 of 2009
JUDGMENT :
1. The appellant aggrieved by the acquittal recorded by the I Additional Chief Metropolitan Magistrate, Hyderabad in CC No.21 of 2005 vide judgment dated 14.07.2008, the present appeal is filed.
2. Briefly, the case of the complainant is that the complainant is a Company registered and incorporated under the Companies Act. During the course of its business of sale of edible oil in wholesale, Managing Partner of M/s.Sri Madhava Traders/accused placed orders on different occasions, for which total amount of Rs.22,91,131/- was outstanding. As per the terms of business, the accused have to make payment for supplies on the next day, failing which interest at the rate of 24% per annum has to be paid. On repeated requests, cheque for Rs.7,68,924/- was issued by the accused, which was returned unpaid for the reason of 'insufficient funds'. A legal notice was issued on 13.12.2004 and the notice sent by registered post was returned unserved with an endorsement 'door locked'. However, it is deemed that the certificate of posting was served.
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3. The learned Magistrate having examined the witnesses on behalf of the complainant/appellant and accused, found that the complainant had misled the Court by suppressing Exs.D1 and D2 which are payments made to the complainant/appellant. For the said reason of suppression of payments made, it is doubtful whether there was any legally enforceable debt.
4. The other ground on which the learned Magistrate acquitted the respondent/accused was that on the covers of the legal notice, which was sent, the address was mentioned as "T.Srinivas Rao, M/s.Madhu Traders, Chilakaluripeta, Guntur". Similar address was mentioned on the notice sent under certificate of posting. However, the address on Ex.P7 returned cover was rounded off and address was written as Block No.23, Assessment No.35, Door No.23/155, Nandam Bapaiah Street. The said address written portion on the return cover was absent in Ex.P5, office copy of legal notice and also the certificate of posting Ex.P6. For the reason of there being no sufficient address, the cover was returned. In the said circumstances, the learned Magistrate found that Ex.P7 returned cover was tampered and fabricated subsequently to reflect the 3 detailed address. However, for the reason of 'insufficient address' and the complainant failing to prove that it was served on the accused by examining postal authorities, it was found that there was no service of notice, for which reason, the prosecution fails.
5. Learned counsel for the appellant would submit that the finding of the learned Magistrate regarding the outstanding is contrary to the evidence on record. The cheques in question are admitted. The presumption under Section 139 of the Negotiable Instruments Act is attracted. The accused has failed to rebut the said presumption even by preponderance of probability, for which reason, the finding of the learned Magistrate is incorrect. He further argued that notices were sent to the correct address and presumption under Section 27 of the General Clauses Act is that it was duly served.
6. Learned counsel for the appellant relied upon the following judgments; I ) M/s.TRL Krosaki Refractories Ltd., v. M/s.STIS Asia Private Limited [ 2022 (4) SCALE 58]; ii) Sripata (S.Deceased) through his sons Gaurav Singh v. State of Jharkhand [2021 AIR (SC) 5732]; iii) M/s.Kalamani v. P.Bala 4 Subramanian [2021 (5) SCC 283]; iv) Oriental Bank of Commerce v. Prabodh Kumar Tiwari [Criminal Appeal No.1260 of 2022, dated16.08.2022]; v)Uttam Ram v. Devinder [2019 (10) SCC 287] and vi) Rangappa v. Sri Mohan [2010 (1) SCC 441]. On the basis of the aforesaid judgments, learned counsel for the appellant argued that in cases when presumption was not rebutted, the accused has to be found guilty.
7. Having perused the record, the finding of the learned Magistrate regarding non-service of the notice cannot be found fault with. The burden is always on the complainant/appellant to establish that notice was duly served or that the notice was sent to the correct address. In the present case, Exs.P4, 5 and 6 shows insufficient address. However, on the return cover Ex.P7, the said address is rounded off and detailed address was mentioned as stated above. It is for P.W.1 to prove as to why initial address was rounded off and who has written the address thereafter. It is not possible for the postman to write such a detailed address. The complainant/appellant ought to have examined the witness, who has written the said address when the initial address, which was 5 written on the cover initially, was rounded off. On this ground alone, the appeal fails and the same is liable to be dismissed.
8. Accordingly, the Criminal Appeal is dismissed.
__________________ K.SURENDER, J Date: 04.11.2022 kvs 6 HON'BLE SRI JUSTICE K.SURENDER CRIMINAL APPEAL No.103 of 2009 Date: 04.11.2022.
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