S.S. Dwivedi, J.
1. The appellant has preferred this appeal under Section 378 of the Criminal Procedure Code feeling aggrieved by the judgment of acquittal dated 16.2.2004 passed by the learned Additional Chief Judicial Magistrate, Ujjain in Criminal Case No. 3051/2002 whereby acquitted the respondent/accused from the charge under Section 138 of the Negotiable Instruments Act (hereinafter referred to as the N.I. Act for brevity).
2. Brief facts of the case are that appellant/complainant has filed a private complaint under Section 138 of the N.I. Act against the respondent/accused with the allegation that respondent/accused has given a cheque of Rs. 6,00,000/- for the discharge of his liability to the complainant on 10.9.2002. When this cheque was presented by the complainant in his Bank then the said cheque was returned unpaid with the memo stating that the account holder is not having sufficient money in his Bank account. On receipt of this information, appellant/complainant has issued a statutory notice by registered post with acknowledgement to the respondent/ accused demanding cheque amount within specified period as provided under Section 138 of the N.I. Act, but appellant/accused has not paid any amount of cheque to the complainant. Resultantly, appellant/complainant has filed this complaint under Section 138 of the N.I. Act against the respondent. Respondent/accused appeared before the Trial Court and denied the charge levelled against him. Learned Trial Court, after recording of the complainant’s evidence and also of defence witnesses, vide impugned judgment dated 16.2.2004 held that the statutory notice as provided under Section 138 of the N.I. Act has not been properly served on the respondent and hence this complaint is not maintainable and thereby acquitted the respondent from the charge under Section 138 of the N.I. Act. Feeling aggrieved by which appellant/complainant has preferred this appeal under Section 378 of the Criminal Procedure Code against the acquittal.
3. I have heard the learned Counsel for the appellant as well as Counsel for the respondent and perused the record,
4. It is submitted by the learned Counsel for the appellant Ms, Mini Ravindran that learned Trial Court has committed gross error in holding that statutory notice as provided under Section 138 of the N,I, Act has not been properly given and served on the respondent and on the basis of that finding, wrongly dismissed the appellant’ s complaint whereas it is on record that the notice has properly been addressed to the respondent. This has been received by the adult member of the respondent’s family for which the acknowledgement receipt is also on record. Thus, the complainant has properly complied with the condition of the statutory notice to the respondent/ accused. Thus learned Counsel submits that the impugned judgment passed by the Trial Court is erroneous and liable to be set aside, therefore, prayed for setting aside of the impugned judgment and for conviction of the respondent/accused.
5. In reply, learned Counsel appearing on behalf of the respondent submits that the concerned notice has not been addressed to the residential address of the respondent. This has not at all been received by the respondent. The respondent has also filed necessary documents which shows that his residence is having different house number wherein he resides. It is also not proved that who had received the so-called notice given by the appellant. In view of that, learned Trial Court has rightly held that statutory notice has not been properly given to the respondent and hence the complaint filed under Section 138 of the N.I. Act is not maintainable and rightiy dismissed it and acquitted the respondent. No material grounds are available to interfere with the aforesaid impugned judgment of acquittal, therefore, prayed for dismissal of the appeal.
6. The only point which is material for decision of this appeal is as to whether the appellant/complainant has given statutory notice for payment of cheque amount to the respondent and he had received it.
7. Complainant Laxmandas examined himself before the Trial Court who staled that he had issued statutory notice to the respondent which is Ex. P/5, for which he also proved the postal receipt Ex. P/6 and acknowledgement receipt Ex. P/7, but in cross-examination, he admitted the fact that he could not say as to whether the respondent/accused has received that notice or not (in paragraph 5). Thus, complainant Laxmandas himself is not very certain about the receipt of the notice by the respondent/accused.
8. The appellant/complainant has also not examined the concerned Postman who had actually delivered the notice to the respondent. It is true that there might be a legal presumption of the delivery of the registered post acknowledgement due to the addressee, but this presumption is rebuttable presumption and for this rebuttal, the respondent/accused has examined Abhijeet Sarwate, handwriting expert (DW-1) who examined acknowledgement receipt Ex. P/7, which has been filed by the complainant and in his report Ex.D/2 he clearly opined that the acknowledgement receipt Ex. P/7, which has been marked as 2 has not been signed by the respondent/ accused. In rebuttal of the statement of the aforesaid handwriting expert Abhijeet Sarwate (DW-1) complainant has not produced any other cogent evidence on which basis, it can be found proved that acknowledgement receipt Ex. P/7 has been signed by the respondent/accused himself.
9. Respondent/accused has also filed certain documents in his favour for the defence that on notice Ex. P/4 the address of the respondent has been mentioned as “House No. B-209 Santram Sindhi Colony, Ujjain” whereas this is not the actual residential address of the respondent and to prove this fact, respondent/accused has filed documentary evidence–electric bill wherein his residence is shown to be “House No. 208 Sindhi Colony, Ujjain”, telephone bill which has been issued by the Telephone Department. In this also, residence is shown “208 Sindhi Colony, Ujjain”. On perusal of the aforesaid documentary evidence also, it is apparent that notice Ex. P/4 has not been given to the respondent on his specified residential address, therefore, presumption of its service cannot arise that respondent/accused himself received this notice whereas as stated hereinabove, the acknowledgement receipt Ex. P/7 has also not contained the signature of the respondent accused.
10. It is true that presumption under Section 114 of the Evidence Act and under Section 27 of the General Clauses Act can arise when a particular notice has been issued on the specified address of the receiver, but in the present case, as stated hereinabove, the specific residential address of the respondent is different. In such case, the aforesaid presumption of service of notice cannot be drawn. For this proposition, learned Counsel for the respondent relied on the judgment of Hon’ble the Apex Court in ShridharM.A. v. Metalloy N. Steel Corporation , wherein it is held as under:
The case of the appellant is that the appellant did not get notice which is the sine qua non for initiating criminal proceedings under Section 138 of the Negotiable Instruments Act. Therefore, the Trial Court was justified in passing the order of acquittal. The High Court has set aside such order of acquittal and passed the order of conviction and sentence by proceeding on the basis of deemed service. Although, in appropriate case deemed service is to be accepted by the Court, as indicated in the decision of this Court reported in State of M.P. v. Hiralal but it may also be noted that such presumption of deemed service is not a matter of course in all cases and deemed service is lo be accepted in the facts of each case. Considering the facts of the present case, it appears to us that the appellant is entitled to the benefit of doubt as to whether such service, in fact, had been effected on the appellant.
11. Similarly, learned Counsel for the respondent also relied on the decision of Jammu and Kashmir High Court reported in Munshi Ram v. Shakuntala Devi AIR 1978 Jammu & Kashmir 31, wherein it is held:
In my opinion, presumption under Section 114 of the Evidence Act and Section 27 of the General Clauses Act, can be raised only if it was shown that the notice gave correct particulars of the addressee on the notices and on the forms of acknowledgement. Here the defendant had categorically denied the receipt of any notice and had denied to have signed the acknowledgement. It was, therefore, that the Trial Court placed the onus of the issue on the plaintiff. The presumption that can be drawn under Section 114 of the Evidence Act and Section 27 of the General Clauses Act is, indeed, rebuttable.
12. Similarly, learned Counsel for the respondent also relied in another decision of Jammu & Kashmir High Court reported in Mrs. Rozy Kukreja v. Finance Associates I (2005) BC 492 : 2005 (1) DCR 58, wherein it is held that complainant has sent notice on incorrect address then presumption for service of the notice is not available in favour of the complainant.
13. In view of the aforesaid law, it is apparent that presumption of service of statutory notice to the respondent cannot be drawn against the respondent, as notice has not been given by the complainant on the correct address of the respondent. Thus, case of the complainant is deemed to be a case wherein no statutory notice has been given properly by the complainant to the respondent. In such circumstances, the complaint is liable to be dismissed on this preliminary ground as held by learned Trial Court also.
14. Without proper service of the notice complaint is not maintainable under Section 138 of the N.I. Act. On this proposition, I rely upon the decision of the Hon’ble apex Court reported in K. Bhaskaran v. Sankaran Vaidhyan Balan and Anr. IV (1999) CCR 63 (SC) : III (2005) BC 158 (SC) : 2000(1) M.P.L.J. 1, wherein Hon’ble apex Court has held as under:
On the part of the payee he has to make a demand by ‘giving a notice’ in writing. If that was the only requirement to complete the offence on the failure of the drawer to pay the cheque amount within 15 days from the date of such ‘giving’, the travails of the prosecution would have been very much lessened. But the legislature says that failure on the part of the drawer to pay the amount should be within 15 days ‘of the receipt’ of the said notice. It is, therefore, clear that ‘giving notice’ in the context is not the same as receipt of notice. Giving is a process of which receipt is the accomplishment. It is for the payee to perform the former process by sending the notice to the drawer at the correct address.
15. In view of the aforesaid law laid down by Hon’ble Apex Court and looking to the factual scenario of the present case, it is apparent that no notice has been properly served on the respondent with regard to the demand of the cheque amount as provided under Section 138 of the N.I. Act, therefore, the complaint under the aforesaid provision is not at all been maintainable, as rightly held by the learned Trial Court and on this basis, learned Trial Court has rightly acquitted the respondent, therefore, no material grounds are available to interfere with the aforesaid impugned order of acquittal passed by the Trial Court.
16. Resultantly, this appeal preferred by the appellant being devoid of any merits is dismissed accordingly and the judgment of acquittal passed by the learned