SHAIKH IQBAL MUZAWAR Vs. ABITALIB MALIK

JUDGEMENT

(1.) BY this appeal, the appellant takes exception to the judgment and order dated 26/03/2010 passed by the Judicial Magistrate, First Class, Panaji in OA Case No.945/2008/B acquitting the respondent for the offence punishable under Section 138 of Negotiable Instruments Act, 1881 ('the Act' for short).

(2.) THE appellant is the complainant and the respondent is the accused in the above case. THE parties shall hereinafter be referred to as per their status before the Trial Court.

(3.) MR. Vaz, learned Counsel appearing for the appellant / complainant submitted that both the grounds on which learned Magistrate has acquitted the accused are untenable in law. According to MR. Vaz, both the numbers i.e. 512418 and 105137 appear on the cheque and the complainant being a layman, was not expected to mention the actual number of the cheque i.e. 105137 and in any case, the accused had not disputed his signature on the cheque and, therefore, learned Magistrate could not have acquitted the accused on this ground. The stamp on the envelope in which notice was issued, clearly discloses that the notice was unclaimed and, therefore, there is presumption of service of notice on the accused. MR. Vaz further submitted that the accused was very much aware of the notice issued by the complainant and in spite of intimation having been given to him, the accused chose not to claim the same with a view to avoid liability in respect of the cheque. MR. Vaz placed reliance upon the judgment of the Apex Court in the case of P. Venugopal Vs. Madan P. Sarathi; (2009)1 SCC 492).