V.Chandrasekar Reddy vs M/S.Universal Construction, ...
2022 Latest Caselaw 4965 Tel

           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

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.

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

HON'BLE SRI JUSTICE K.SURENDER

CRIMINAL APPEAL No.1327 of 2009

Date: 28.09.2022.

kvs