DAMU DATTA NAIK KARMALI Vs. MARIANO ANTHONY RODRIGUES

JUDGEMENT

(1.) HEARD .

(2.) THE present appeal arises from the judgment and order dated 18.3.2006, whereby the complaint filed by the appellant under Section 138 of the Negotiable Instruments Act, 1881 ('the Act', for short) has been dismissed on two grounds. Firstly, that the appellant is not entitled for presumption about the service of notice which is statutorily required to be given before initiating proceedings under Section 138 of the Act and, secondly, that the Exhibit 36 which was claimed by the appellant to be the confirmation of the balance amount due from the respondent was a concocted and fabricated piece of evidence and that, therefore, the appellant has miserably failed to prove the offence beyond reasonable doubt.

(3.) ON the other hand, the learned counsel appearing for the respondent submitted that the finding by the trial Court that the notice was not properly addressed to the respondent and that, therefore, the appellant was not entitled for the presumption, has been arrived at on account of failure on the part of the appellant to address the notice at the correct address, and as such, there was no obligation on the part of the respondent to make the payment pursuant to +he service of the summons in the matter. He further submitted that in respect of the electoral roll-Exhibit 47, which gave correct address of the respondent, no fault can be found with the trial Court in relying on the electoral roll to ascertain the correct address of the respondent. The view taken by the trial Court, therefore, cannot be found fault with and the present proceedings being appeal against acquittal, it would not be appropriate for this Court to interfere in the impugned order merely because different view on fresh analysis of evidence is possible. He further submitted that though the impugned order is not happily worded as far as findings are concerned, the ultimate decision being clearly borne out from the records no interference is required by this Court. Hence, the appeal be dismissed.