Proper service of notice under Section 138 requires consideration of actual address used and prior knowledge; mere discrepancies should not obstruct valid claims.

ORAL JUDGMENT :

Heard.

2. The present appeal arises from the judgment and order dated 18/03/2006, whereby the complaint filed by the appellant under Section 138 of the Negotiable Instruments Act, 1881 ('the Act', for short) has been dismissed on two grounds. Firstly, that the appellant is not entitled for presumption about the service of notice which is statutorily required to be given before initiating proceedings under Section 138 of the Act and, secondly, that the Exhibit 36 which was claimed by the appellant to be the confirmation of the balance amount due from the respondent was a concocted and fabricated piece of evidence and that, therefore, the appellant has miserably failed to prove the offence beyond reasonable doubt.

3. The learned Advocate for the appellant while assailing the impugned judgment and order submitted that the learned Magistrate erred in holding that the appellant is not entitled for the presumption regarding the service of notice upon the respondent, when the evidence on record proves to the contrary and further he erred in holding that the electoral roll-Exhibit 47 is the conclusive evidence of the correct address of the respondent no.1, particularly in view of the fact that the respondent himself in the revision application filed before the Sessions Court had also disclosed the same address on which the appellant had issued the notice. Referring to the merits of the case, he submitted that the trial Court erred in acquitting the respondent without even analysing the materials on record and totally ignoring the provisions of law comprised under Section 138 of the Act. He further submitted that the trial Court also erred in holding that Exhibit 36 was concocted piece of evidence, when it was nobody's case that it was so and the fact that the signature on the said document was clearly admitted by the respondent. Reliance was sought to be placed in the decisions in the matter of C.C. Alavi Haji V/s. Palapetty Muhammed & Anr. reported in 2007(6) SCC 555, Purushottam V/s. Manohar K. Deshmukh & Anr. reported in 2007(1) Mh.L.J. 210, K. Bhaskaran V/s. Sankaran Vaidhyan Balan & Anr. reported in 1999 (7) SCC 510, D. Vinod Shivappa V/s. Nanda Belliappa reported in 2006(6) SCC 456, Shri Mohamed Ali Mulla V/s. State of Goa & Anr. reported in 2006 ALL MR (Cri) 34, Armstrong Builders & Developers V/s. Vishvanath Naik reported in 2007(1) Mh.L.J. 787.

4. On the other hand, the learned Counsel appearing for the respondent submitted that the finding by the trial Court that the notice was not properly addressed to the respondent and that, therefore, the appellant was not entitled for the presumption, has been arrived at on account of failure on the part of the appellant to address the notice at the correct address, and as such, there was no obligation on the part of the respondent to make the payment pursuant to the service of the summons in the matter. He further submitted that in respect of the electoral roll-Exhibit 47, which gave correct address of the respondent, no fault can be found with the trial Court in relying on the electoral roll to ascertain the correct address of the respondent. The view taken by the trial Court, therefore, cannot be found fault with and the present proceedings being appeal against acquittal, it would not be appropriate for this Court to interfere in the impugned order merely because different view on fresh analyses of evidence is possible. He further submitted that though the impugned order is not happily worded as far as findings are concerned, the ultimate decision being clearly