E.Narsinga Rao, vs The State Of Ap Rep By Its Pp Hyd., ...
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             HON'BLE SRI JUSTICE K.SURENDER

             CRIMINAL APPEAL No.770 OF 2008
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 C.C.No.380 of 2004 dated

26.03.2008 passed by the Chief Metropolitan Magistrate,

Hyderabad.

2. The parties hereinafter will be referred to as arrayed

before the trial Court. Briefly, the allegations made in the

complaint are that the Accused availed hand loan of

Rs.1,54,000/- from the complainant for performing his

daughter's marriage in the month of November, 2001 by

promising to repay the same within a short period and

executed an agreement on 28.11.2003 promising to repay the

said amount. He also issued post dated cheque Ex.P1 for

Rs.1,54,000/- drawn on State Bank of Hyderabad. The said

cheque, when presented for clearance was returned with an

endorsement 'funds insufficient'. The complainant sent a copy

of the said notice under Ex.P4 through certificate of posting

and the same was returned and the returned cover is Ex.P7.

3. The learned Magistrate found that the complainant has

failed to prove that; i) there was any legally enforceable debt or

outstanding liability as against Ex.P1 cheque and the Accused

had repaid the amount by producing evidence under Exs.D1

to D9 to show that the cheque in question was not given

towards repayment of any debt that was taken; ii) the copy of

legal notice Ex.P4 it was sent under Ex.P7 was returned

unserved and the same was not sent to the correct address.

4. As seen from the record, the notice was sent under

certificate of posting. Further, no presumption can be drawn if

notice is sent under certificate of posting. Section 27 of the

General Clauses Act reads as follows:

"27 Meaning of service by post: --Where any 49 [Central Act] or Regulation made after the commencement of this Act authorizes or requires any document to be served by post, whether the expression serve" or either of the expressions "give" or "send" or any other expression is used, then, unless a different intention appears, the service shall be deemed to be effected by properly addressing, pre-paying and posting by registered post, a letter containing the document, and, unless the contrary is proved, to have been effected at the time at which the letter would be delivered in the ordinary course of post."

5. As seen from the provision of Section 27 of the General

Clauses Act, a presumption can only be drawn when a letter is

sent by registered post to the correct address. The

complainant failed to prove that the notice was sent to the

correct address, for which reason, the presumption under

Section 27 of the General Clauses Act cannot be drawn.

There are no grounds to interfere with the order of acquittal.

6. Accordingly, the Criminal Appeal is dismissed. As a

sequel thereto, miscellaneous petitions, if any, pending, shall

stands closed.

__________________ K.SURENDER, J Date: 28.07.2022 kvs

HON'BLE SRI JUSTICE K.SURENDER

CRIMINAL APPEAL No.770 OF 2008

Date:28.07.2022.

kvs