NEELAM DEEPAK MEHTA Vs. VILAS MAHADEO SAWANT

JUDGEMENT

(1.) THE submissions of the learned counsel for the parties were heard on the last date. I have perused the record and the impugned Judgment and Order.

(2.) THIS is an application under sub section 4 of section 378 of the Code of Criminal Procedure,1973. A complaint filed by the applicant under section 138 of the Negotiable Instrument Act,1881 has resulted in acquittal. The acquittal is mainly on the ground that the service of notice of demand by the applicant to the first respondent was not duly proved. The address of the first respondent on the complaint is "305, Archana Apartment, Ram Mandir Road, Koliwada, Bhayander (West) Taluka and District Thane". The trial court found that the same address was mentioned on the notice of demand dated 15th September 2004 but on the envelope of the notice, address of the first respondent was mentioned as "Mahavir Nagar, Row House No.3, Goddeo Road, Mira Road, Taluka and District Thane". The postal envelope containing notice sent by R.P.A.D. was returned unserved with the remark "unclaimed".

(3.) THE case made out by the applicant in her own civil suit is that she is in possession of the said row house. Moreover, the address of the "305, Archana Apartment, Rambhandu Road, Koliwada, Bhayander (West), Taluka and District Thane" has been set out in the cause title of the complaint. The same address is set out in the notice of demand. Surprisingly, on the envelope of the notice, the address of Row House No.3 was mentioned. Reliance is placed on the service effected through courier service. What is exhibited by the trial court is a receipt issued by the courier service which is at Exh.19 which does not bear the signature of the consignee i.e. first respondent. A xerox copy of the alleged delivery of receipt no.ro8678 has been annexed to the Exh.19. However, original of the said receipt is not produced and alleged signature thereon of the first respondent is not proved.