AMOGH ENTERPRISE Vs. ANJALI THAKRAN

JUDGEMENT

(1.) THE appellant/original complainant, being aggrieved by the judgment of the Judicial Magistrate, First Class, Margao, dated 23rd July, 2003, in Criminal Case No, 372/n/99/e, acquitting the respondent No. 1/ accused for an offence punishable under section 138 of the Negotiable instruments Act, has filed the present appeal.

(2.) THE facts in brief, as are necessary for the decision of the appeal, are set out hereunder:? the respondent No. 1/accused had issued to the appellant a cheque bearing No. 232396, dated 28th February, 1999, for Rs. 30,000/-, drawn on the Corporation Bank, Margao Branch, towards the discharge of the bill of the appellant for carrying out certain electrical works. When the said cheque was presented for collection by the appellant/complainant, the same was returned unpaid with the endorsement insufficient funds'. The cheque issued by the respondent No. I/accused is at Exhibit P. W. 1/b. The memo by which the cheque was returned unpaid is at Exhibit P. W. 1/c. Consequent on the dishonour of the cheque, a notice, dated 17th July, 1999, was issued by the appellant at Exhibit P. W. 1/d. The said notice was returned with a postal endorsement that the respondent was not residing at the said place and the present address was not known. The postal envelope and the A. D. card is at exhibit P. W. 1 /e Colly. A copy of the said notice was also sent under Certificate of Posting and the certificate of posting is at Exhibit P. W. 1/f. A complaint, therefore, came to be filed against the respondent No. 1/accused and the same was registered as Criminal Case No. 372/n/1999/e. The verification statement of P. W. 1 Dilip Prabhu Desai, a partner of the complainant firm, came to be recorded by the learned trial Court and process was ordered to be issued against the respondent No. 1. Substance of the accusation, at Exhibit 9, was explained to the respondent No. 1/accused, who pleaded not guilty and claimed to be tried. The complainant, in support of its case, examined p. W. 1. Dilip Prabhu Desai. The respondent No, 1/accused examined herself as A. W. 1 and also her husband Sanjay Thakran as A. W. 2. The learned trial judge came to the conclusion that the appellant/complainant was aware that the accused was not residing at the address at which the notice was addressed to and therefore, since the accused was not served with a notice, no offence under section 138 of the Negotiable Instruments Act was made out and, accordingly, acquitted the accused. Hence, the appeal.

(3.) P. W. 1 Dilip Prabhu Desai in his examination-in-chief has stated about the electrical works carried out by the complainant company as per the request of the respondent No. 1/accused, about the resentation of the cheque, its dishonour and of sending the notice to the respondent No. 1/accused. In the cross-examination, on behalf of the respondent No, 1, P. W. 1 Dilip Prabhu desai has admitted that the cheque was presented by him for collection on 28th February, 1999 in the Saraswat Bank, Margao Branch. He has further admitted that after its dishonour, on the first occasion, he brought the fact to the notice of the accused and, thereafter, waited for more than 15 days for the accused to make payment as she had requested him not to re-deposit the cheque. According to P. W. 1 Dilip Prabhu Desai, he waited till 7th July, 1999 and presented the cheque again on 7th July, 1999 and the same was returned unpaid on 8th July, 1999. He has admitted that his statement in the complaint that he had received the cheque from the bankers on 7th July, 1999 was incorrect. He has further admitted that he could not say whether the accused was residing at the given address when the registered notice was sent by him. He has denied the suggestion that the accused did not receive the notice sent by the complainant. He has further admitted that the electrical works were the only works carried out by the complainant fo the accused at Sernabatim. He has also admitted 1 was told by the accused that she was staying at sernabatim where the structure had been constructed'.