N.Ram Kishan vs The State Of Andhra Pradesh ...
2022 Latest Caselaw 5650 Tel

                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.

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

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

HON'BLE SRI JUSTICE K.SURENDER

CRIMINAL APPEAL No.320 of 2010

Date: 04.11.2022.

kvs