THE HONOURABLE SRI JUSTICE K.SURENDER CRIMINAL APPEAL No.128 OF 2010

JUDGMENT:

The appellant is the complainant, questioning the acquittal of the respondent/accused for the offence under Section 138 of the Negotiable Instruments Act, 1881.

2. Heard the learned counsel for the appellant, learned counsel for the respondent and the learned Assistant Public Prosecutor.

3. Briefly, the case of the complainant is that the accused purchased paddy worth of Rs.87,584/- from the complainant which was acknowledged by the accused on 11.02.2006. Having deducted the tax, cheque for Rs.84,080/- was issued by the accused. The said cheque when presented for clearance was returned unpaid on the ground of insufficient funds on 15.02.2006. Postal receipt/Ex.P.5 and office copy of legal notice/Ex.P.4 were marked during the course of the trial. 4. Learned Magistrate found that on the back of the cheque/Ex.P.1, there is State Bank of Hyderabad (SBH), Kothagudem clearing stamp which is dated 16.02.2006. However, the cheque was dated 14.02.2006. Further, according to the learned Magistrate, two overseas bank receipts were filed, one dated 16.02.2006 and the other dated 14.02.2006. In the receipt dated 16.02.2006, the date was altered as 14.02.2006 from 11.02.2006. Alteration was apparent from the record, however, the said receipts were not marked as exibhits during the course of evidence of P.W.1. Learned Magistrate found that Ex.P.3 was filed which is SBH, Kothagudem clearing memo, issued on 16.02.2006, whereas back side of it, the date is mentioned as 15.02.2006. Proof of service of notice was not filed. Neither returned postal cover was filed nor the acknowledgment.

5. In view of the above findings, learned trial Judge found that since there was no service of notice, prosecution cannot be maintained under Section 138 of N.I.Act.

6. The present appeal is filed mainly on the ground that notice was served on the accused. Crl.M.P.No.214 of 2024 in C.C.No.1194 of 2207 was filed before this Court for additional evidence to be adduced regarding service of notice. The petition was allowed and the trial Court was directed to examine the witness produced by the complainant. The complainant examined one V.Srinivas from Post Office. P.W.1 also entered into witness box and marked Ex.P.6/application made to the Post Master, Sujatha Nagar Post Office dated 26.09.2009 and Ex.P.7/Delivery certificate issued by the Post Master, Sujatha Nagar Post Office, dated 03.11.2009. Further Ex.P.9 is also marked which is the letter issued by the Superintendent of Post Offices reflecting the name of Post Master Mr.Mirja Ismail Baig who had delivered the notice cover.

7. Learned counsel appearing for the appellant submits that on the basis of additional evidence that is adduced, it is apparent that the notice was served on the accused.

8. Having gone through the evidence of P.W.2 who was examined, he stated in his cross-examination that he has no personal knowledge about Ex.P.6 and Ex.P.7. Further, Postal Department would maintain separate record/Register for registered letters and it will be recorded in register regarding the delivery status of the concerned. Further, there is no record pertaining to Ex.P.7. In Ex.P.7, it is not mentioned regarding the details of the Register maintained by the Postal Department and also the details of delivery. Further, P.W.2 also admitted that in Ex.P.6, there is an alteration to the last digit.

9. The fact remains that though the person from the Postal Department was examined, he could not say as to on what basis, it could be said that notice was served on the accused. As already discussed, the person from the Postal Department in his cross-examination totally denied having knowledge about delivery of postal cover and also specifically stated that there is no record pertaining to details of delivery and also about record that was maintained. When the witnesses have no personal knowledge and deposing on the basis of record, the said record has to be