HON'BLE SRI JUSTICE K.SURENDER
CRIMINAL APPEAL No.1327 of 2009
ORDER:
1. The appellant/complainant is aggrieved by the dismissal of the complaint under Section 138 of the Negotiable Instruments Act vide judgment in CC No.525 of 2008 dated 16.05.2009 passed by the XVI Additional Judge-cum-XX ACMM, Hyderabad, mainly on the ground that notice was not sent to the address of the respondents 1 and 2/A1 and A2.
2. The case of the complainant is that the complainant's grandmother wanted to purchase two flats from the accused and money was given. However, the grandmother of the complainant died. The accused informed that flats were sold to others as grandmother of the complainant did not evince interest in purchasing the flats by paying the remaining amount. For the said reason, the case under Section 420 of IPC in Cr.No.49 of 2004, dated 20.02.2004 was also filed. In the said criminal case, there was a settlement which was arrived at and in consequence of the settlement, cheques in 2 question were given towards settlement payable to the complainant.
3. Learned Magistrate acquitted the accused mainly on two grounds; i) that P.W.1 admitted during cross-examination that out of Rs.6,40,000/-, the accused paid an amount of Rs.4,40,000/-, for which reason, it cannot be said that there is a legally enforceable debt to the extent of Rs.4,40,000/- and ii) copy of such legal notice Ex.P7 was issued on 17.04.2004; the address mentioned in the present case is totally different from the address mentioned in Ex.P7. As seen from the postal endorsement Ex.P7 cover, it was noted by 'R/L' (returned left) and address on the cover is also struck down, which shows that the accused was not residing in the said house on that date, for which reason, Section 27 of the General Clauses Act cannot be invoked.
4. Finding of the learned Magistrate that the notice was sent to the address where the accused was not residing, cannot be found fault with. The said finding is supported by documents which were filed by the complainant himself. 3 Unless the complainant proves that notice was sent to the correct address, the presumption under Section 27 of the General Clauses Act cannot be invoked. In the said circumstances, for the reason of the notice being sent to the address, where the accused was residing or running his office, prosecution under Section 138 of the N.I.Act cannot be maintained.
5. In view of the foregoing reasons, there is no error committed by the learned Magistrate in acquitting the appellant.
6. Accordingly, the Criminal Appeal is dismissed.
__________________ K.SURENDER, J Date: 28.09.2022 kvs 4 HON'BLE SRI JUSTICE K.SURENDER CRIMINAL APPEAL No.1327 of 2009 Date: 28.09.2022.
kvs 5