M/S Agarwal Industries Ltd., vs Sri Tavva Srinivasa Rao, Another,
2022 Latest Caselaw 5652 Tel

               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.

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

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

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

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

HON'BLE SRI JUSTICE K.SURENDER

CRIMINAL APPEAL No.103 of 2009

Date: 04.11.2022.

kvs