The court balanced the purpose of punishment for economic offenses with the individualistic issues of the offender to determine the appropriate sentence.

1. This appeal is preferred against the judgment and order dated 2nd September, 2005 passed in Criminal Complaint No.484/2004, by the Judicial Magistrate, First Class, Karanja, thereby acquitting the respondent of the offence punishable under Section 138 of the Negotiable Instruments Act, 1881.

2. Brief facts of the case are as under :

The respondent-accused had issued eight cheques of Rs.10,000/ each as payment of purchase price of the rice procured by him from the appellant on 18.11.2000. These cheques could not be encashed by the appellant due to insufficient funds in the account of the respondent. As the notice issued under Section 138 of the Negotiable Instruments Act, 1881 (for short, “N.I. Act”) was not complied with, the appellant filed five criminal cases under Section 138 of the N.I. Act against the respondent-accused. The respondent-accused entered into a compromise out of the Court with the appellant and in pursuance of the same, on 28.6.2003, sought permission of the Court for compounding of the offences. The respondent-accused also issued a cheque bearing No.670947, dated 25.12.2003 for Rs.80,000/ drawn of Shikshak Sahakari Bank Ltd., Nagpur in favour of the appellant towards full and final settlement of the dispute between them. Considering all these facts, the learned Judicial Magistrate, First Class, Nagpur granted permission to both the parties to compound the offence.

3. When the cheque was deposited in the account of appellant maintained with the Urban Cooperative Bank Limited, Bhandara, the cheque was dishonoured for want of sufficient funds in the account of respondent on which the cheque was drawn. The cheque was returned for the said reason by the bank on 14.5.2004. Therefore, on 2.6.2004 the appellant sent a notice through registered post to the respondent demanding from him the sum of Rs.80,000/. The notice could not be served and was returned with an endorsement “Not Claimed”, following which the appellant instituted the complaint before the Judicial Magistrate, First Class, Karanja against the respondent under Section 138 of the N.I. Act.

4. As the respondent claimed to be tried, the Judicial Magistrate, First Class proceeded with the trial of the complaint case and upon consideration of the evidence and argument of both parties learned Magistrate found that though the cheque was dishonoured due to insufficient funds in the account of the respondent, the appellant failed to prove service of notice to the respondent and, therefore, recorded finding of acquittal of the respondent for an offence punishable under Section 138 of the N.I. Act in the judgment and order dated 2nd September, 2005.

5. Being aggrieved by the same, the appellant-complainant is before this Court in this appeal filed against the acquittal of the respondent under Section 378 of the Criminal Procedure Code.

6. I have heard Mr. Khandalkar, learned counsel for the appellant and Mr. Morande, learned counsel for the respondent. I have carefully gone through the impugned judgment and order and also the record of the case before the trial Court.

7. It is submitted by the learned counsel for the appellant that there is clinching evidence available on record showing that the Postman visited the house of the respondent at Navargaon and as the respondent was not present there an intimation was given by him for collecting of the postal article from Navargaon Post Office and yet it was not claimed by the respondent. The learned Magistrate, he further submits, ought to have held that the appellant proved the service of notice with the aid of Section 114 of the Indian Evidence Act, 1872 especially when there was no evidence brought on record by the respondent showing that at that time the respondent was not residing at Navargaon. In support, he has placed reliance on the cases of Amar Singh vs. Rala Singh, reported in AIR 1927 Lahore 506 and Puwada Venkateswara Rao vs. Chidamana Venkata Ramana, reported in AIR 1976 SC 869(1).

8. Mr.