IMPORTANT POINT
No wilful evasion of service can be presumed if registered notice is returned with endorsement “addressee not found”.

[Paras 1-6 are omitted being Facts Ed.]

Kochar, J.—The learned Trial Court in Para 11 discussed the evidence about sending of registered notice (Ex. P/5) as well as the statement of defence witness DW-l Suresh Prajapat and held that in Registered Notice the address of the applicant is mentioned as 20, Neel Ganga Chouraha. Ujjain whereas in Ex. PI6 acknowledgement under Post Certificate the address of the applicant is mentioned as 23, Neel Ganga; Near Kavelu Karkhana, Ujjain. It is further considered by the Trial Court in this para that the defence witness DW-1 Suresh Prajapat is resident of 1/15, Neel Ganga, Near Kavelu Karkhana. Ujjain. Therefore, the question of receipt of this envelope/notice (Ex. P15) by defence witness and sending the same to the applicant would not arise. The Trial Court has not given any weight to Ex. P/5 Registered Notice returned back unserved to the applicant and in Para 12 considered under Postal Certificate. (Ex. P 16) for service of notice, but after going through the discussion in Para 12, it is difficult to understand as to how and on what basis the learned Trial Court has held that the notice sent under Postal Certificate (Ex. P/6) was served upon the applicant.

8. In the para, the learned Trial Court has held that DW-l Suresh was known to the applicant. His father’s name is not Kanhaiyalal. Therefore, it is unbelievable that he kept the aforementioned notice with him. In both the situations if DW-1 would have handed over the notice to the applicant or else no question would arise to produce the same in the Court. To understand the finding arrived in Para 12 by the Trial Court, this Court has perused the statement of DW-1 Suresh Prajapat

S/o. Ramlal R/o. 1/15, Neel Ganga, Near Kavelu Karkhana. In his complete statement (examination-in-chief and cross-examination), there is absolutely no reference to the document (Ex. P/6) i.e. Under Postal Certificate (UPC) receipt. This witness has stated that he received the notice (Ex. P15) i.e. Envelope of Registered Post and handed over the same to the applicant. This story has been disbelieved by the learned Trial Court in Para 11. Therefore, the finding arrived at by the Trial Court about service of notice sent under Postal Certificate (Ex. P16) is based on improper appreciation of evidence rather to say cryptic in nature.

9. In appeal, the learned Lower Appellate Court in Paras 6 and 7 mainly considered the envelope of Registered Post returned back with the endorsement-

“Addressee has gone out for long time and therefore he is not available at the time of delivery, hence returned”.

(Endorsement is in Hindi and is translated in English-Ed.)

The lower Appellate Court has considered the intimation of this envelopment as Registered Notice was given to the noticee on 25.11.1999, 27.11.1999, 29.11.1999, 02.12.1999 and 03.12.1999 and, thereafter, returned back on 04.12.1999 with the aforesaid note, in Hindi. In Para 7, the learned Appellate Court relying on the Supreme Court Judgment reported in M/s. Madan and Co. v. Wazir Jaivir Chand1, held that in the present case, the applicant/accused was intimated on six different dates about the notice and did not receive the same. Therefore, the applicant was having knowledge of the notice and avoided its service on him. The lower Appellate Court on this basis, considered the service of the notice upon the applicant. This Court has perused the document Ex. P/5 envelope registered with acknowledgement due and Ex. P/6. Under Postal Certificate. The lower Appellate Court has committed an error in construing that on the aforementioned dates, the information was given about the notice to the applicant. If the Postman would have given information to the applicant, he would have served upon him and on refusal would have mentioned to have refused at the first instance. There was no need for him to mention on all six dates. These six days are showing the fact that the Postman tried to contact the noticee on the given a