JUDGMENT :

S.M. Modak, J.

The only issue involved in this appeal is about service of notice on the respondent-accused. This is a notice required to be sent as per clause (b) to the proviso to Section 138 of the Negotiable Instruments Act ('N.I. Act' for short). The complainant has sent the notice by Registered Post Acknowledgment Due on proper address, but the postal authority returned the envelope with the remark that it is not claimed by the addressee.

2. The learned Magistrate has refused to consider such mode of service as a valid service. In addition to that, when the complainant produced the envelope containing the notice, it was in an opened condition. The learned Magistrate for that purpose has pointed out the lacuna in the case of the complainant in not examining the postman. Whereas, the learned Magistrate has given findings on other issues in favour of the complainant. The learned Magistrate was pleased to acquit the respondent-accused for the above reasons. The said judgment was delivered by the Special Court for the N.I. Act at Nagpur on 21/02/2006 in Criminal Case No.1220/2005. The correctness of the said judgment is challenged by the appellant-complainant.

Appearance of Respondent

3. The respondent-accused was duly served and he put in appearance also. Even, there was an occasion to saddle costs of Rs.1,000/- on him as well as to appellant vide order dated 04/04/2018. There was also an occasion to issue bailable warrant against the respondent on 12/04/2018. It was also served. However, the respondent has chosen to remain absent. Accordingly, this Court has decided to hear only appellant vide order dated 13/09/2019.

4. Accordingly, I have heard the learned Counsel Shri P.S. Ganer for the appellant-complainant. With his assistance, I have perused the record. I am of the considered opinion that the learned Magistrate was wrong in answering the issue of service of notice against the appellant. I intend to give reasons hereinafter for my opinion.

Trial Court's Observations

5. I have read the observations given by the learned Magistrate while answering Point No.3 in the impugned judgment. Point No.3 pertains to failure to make payment in spite of service of statutory notice. It is in two parts. One - failure to make payments and second - service of statutory notice. The accused has never came with a defence that he had paid the amount of cheque within prescribed period. Payment made during pendency of complaint does not amount to statutory compliance. It is only a mitigating factor. While negativing second part, the learned Magistrate broadly gave the following reasons -

Reasons

i. The complainant has not examined the postman.

ii. The envelope was in an opened condition when it was produced by way of evidence in the Court.

iii. The complainant has not examined learned Advocate Shri V.H. Meshram, who had given the notice.

6. It will be material to consider the oral and documentary evidence on this point.

Documentary Evidence

The complainant relied upon the following documentary evidence -

i. Office copy of the notice dated 22/10/2002 (Exh.48).

ii. Postal receipt given by the department for receipt of envelope (Exh.49).

iii. Returned envelope containing the remark 'not claimed, hence returned to sender' (Exh.50).

iv. Notice dated 22/10/2002 taken out from that envelope (Exh.51).

Oral Evidence

7. When the complainant gave evidence by way of an affidavit, his further examination-in-chief was recorded. Apart from admitting other documents, the documents, which are reproduced above were shown to him. It consists of Exh.48, Exh.49, Exh.50 and Exh.51.

Conclusion

8. It is true that the appellant has not examined the postal representative. There was a suggestion given to the appellant that he managed the open envelope and filed it in the Court. It was denied by him.

9. There is no further elaboration about which meaning for the word 'managed the accused intended to suggest. Does he mean to suggest that the entire packet was got fraudulently prepared f