IMPORTANT POINT
Merely because of misdescription of address in notice, which was actually posted at correct address as evident from AD card, does not entail dismissal of complaint.

Pradeep Nandrajog, J.—Appellant is aggrieved by the impugned Judgment dated 22 Nov. 2001 passed by Shri Rakesh Kumar Sharma, Metropolitan Magistrate. Delhi dismissing the complaint filed by the appellant under Section 138 of the N.I. Act against the respondent.

2. By the impugned Judgment the learned Metropolitan Magistrate has held in favour of the appellant that indeed the respondent had a legal debt in the sum of Rs. 1,37, 258 to pay to the appellant and in satisfaction of the said debt issued three cheques in the sum of Rs.

57,000/- 40,000/- and 40,238/-. When presented for the encashment the cheques returned back dishonoured by the banker. It was also held in favour of the appellant that as per the requirement of law he had issued the statutory notice calling upon the respondent to tender the amount covered by the three cheques within 15 days of receipt of notice failing which action under Section 138 of the Negotiable Instruments Act would be initiated. It has been held that the said notice was posted within the period of limitation prescribed. The only issue which has been decided against the appellant is that it has not been proved that the statutory demand notice was sent at the correct address of the respondent and in that view of the matter the complaint of the appellant stood dismissed.

3. By the impugned Judgment the learned Trial Judge has held that the notice of demand was issued at the following address:

160, MCD Quarters, Nimri Colony, Delhi-110007.

But the acknowledge due card, filed in support of the fact that the notice was duly received by the respondent/accused bears the address 160, Delhi Administration Quarters, Nimri Colony Delhi. It was thus held that the discrepancy shows that the notice was not served upon the respondent.

4. Shri P.R. Thakur learned counsel for the appellant made a very simple submission. The submission was that the AD. Card bore the signatures of the respondent and this was proof enough that the notice was received by him because there was only one notice issued under cover of registered post, acknowledge due.

5. We have perused the record. CW 1 Laxman Singh. Clerk from Syndicate Bank, Asaf Ali Road, New Delhi proved that the account from which the first two cheques were issued was a closed account and as regards the third, the same was returned with the remarks “exceeds arrangement”. From the testimony of CW 2 Pramod Jain it stands established that the accused had issued promissory notes Ex. C-7 to Ex. C-9 covering the cheque amounts. It is relevant to note that this witness was not cross-examined.

6. Appellant, in his deposition stated that the statutory notice was sent by registered post, acknowledgment due and AD card was received back which bore the signatures of the respondent. A mere suggestion was put to the appellant in cross-examination that this was incorrect. It is not disputed that the respondent resides at Flat No. 160, Delhi Administration Quarters, Nimri Colony,

Delhi-110007. From the testimony of the appellant it is apparent that there was a misdescription in the address as given in the notice but in the envelop in which the notice was posted, the correct address was mentioned, evidenced by the fact that the AD card which was received back by the appellant bore the correct address, and was signed by the respondent.

7. In the statement recorded under Section 313, Cr.P.C. the AD card Ex. CW 4/2 was specifically put to respondent and in response thereto he merely denied. He no where stated that the signatures on the AD card were forged. The learned trial Judge has acquitted the respondent, giving him the benefit of doubt on the mere fact that the address set out in the notice was not the address of the respondent, ignoring the fact that the notice was actually posted at the correct address. We, accordingly allow the appeal and set

aside the impugned Judgment dated 22nd Nov. 2001 passed by Shri Rakesh Kumar Sharma, Metropolitan Magis-trate dismissing the complain