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2008 DIGILAW 755 (BOM)

Jagannath Natha Tamahane v. Sai Constructions

2008-06-09

V.K.TAHILRAMANI

body2008
Judgment :- P.C.: 1. The applicant- orig. complainant has filed this application for leave to file appeal against the judgment and order dated 26th February, 2007 passed by the learned J.M.F.C. Phaltan in S.C.C. No.449 of 2002. By the said judgment and order, the learned Magistrate acquitted respondent - orig. accused of the offence under Section of 138 of N.I.Act. 2. The case of the complainant is that he had given a contract to the accused for construction work. However, the accused did not complete the construction as per the contract hence the accused had to refund the amount of expenses of Rs.58,000/-. In respect of the said amount of Rs.58,000/-cheque in question came to be issued by the accused. As the cheque was not honoured, complaint came to be filed. 3. I have heard the learned Counsel for the applicant-Orig.complainant and the learned Counsel for respondent No.1-orig.accused. Perused the judgment and order of the learned Magistrate as well as the evidence which has been annexed. 4. Thelearned Magistrate has acquitted the respondent No.1-orig.accused on two grounds viz. firstly on the ground that there is no material to show that there is any legally enforceable liability and secondly that the notice was not served. 5. The learned Counsel for the applicant has placed reliance on the decision of the Supreme Court in the case of K.N. Beena Vs. Muniyappan & Anr. reported in (2001) 8 SCC 458 ). The learned Counsel has placed reliance on the observations in para-6 thereof wherein it is held that presumption arises under Sections 118 and 139 of the N.I. Act and unless the contrary is proved, it is to be presumed that the negotiable instrument has been made or drawn for consideration. However, in the very same judgment it is further observed that this presumption is rebuttable. In the present case, from the evidence on record, which will be discussed below, it is seen that it has not been brought on record that any legally enforceable liability arose. Moreover, as observed earlier, the learned Magistrate has acquitted the accused not only on the ground of no legally enforceable liability, but, also on another ground. 6. As far as the first ground, i.e. there is no material to show that there is any legally enforceable liability is concerned, it is seen that the agreement is for Rs.4,25,000/-. Moreover, as observed earlier, the learned Magistrate has acquitted the accused not only on the ground of no legally enforceable liability, but, also on another ground. 6. As far as the first ground, i.e. there is no material to show that there is any legally enforceable liability is concerned, it is seen that the agreement is for Rs.4,25,000/-. As per the agreement the construction work was to be completed by 30th June, 2002. The payment receipt dated 21.3.2002 shows that the first instalment of advance of Rs.40,000/- was received. On 3.4.2002 Rs.10,000/- and Rs.50,000/- was paid. Thereafter on 8.4.2002 payment of Rs.25,000/- was made and on 27.4.2002 payment of Rs.1,55,000/- was made. Thus, the amount received by the accused was Rs.2,80,000/-, on the contrary the agreement is for much larger amount i.e. Rs.4,25,000/-. The complainant has not brought on record the evidence regarding cost of the construction, stage of construction or at what stage the accused had stopped the construction and what was due from the accused as per the stage of construction. Thus looking to the evidence, it cannot be said that the complainant has proved that the cheque was issued in respect of any legally enforceable liability. 7. As far as the second ground is concerned i.e. relating to notice not being served, the complainant has stated that he issued notice (Exh.52) to the accused and it was served on the accused. This fact is denied by the accused. The envelop of the notice is at Exh.47. On the said envelop the address is mentioned as ‘Bhondvasti near Ambamala at Post Sakharwadi taluka Phaltan district Satara’. On the said envelop at back side, the remarks were put by the postal authority that the intimation was given and not claimed hence returned. The accused has raised objection that the address mentioned on the said envelop is incorrect. The complainant in his cross examination admitted that the accused is residing at Murum, taluka Phaltan. He has issued the notice to the accused on the address of Murum. He has not filed the office copy of notice and receipt of post showing that he has sent the notice to the accused on the address of Murum. This admission of the complainant itself shows that, the accused is residing at Murum, taluka Phaltan. He has issued the notice to the accused on the address of Murum. He has not filed the office copy of notice and receipt of post showing that he has sent the notice to the accused on the address of Murum. This admission of the complainant itself shows that, the accused is residing at Murum, taluka Phaltan. However, though the complainant has admitted that he has issued notice on the address at Murum to the accused he has not filed copy of the same. Exh.52, office copy of the notice issued by the complainant’s advocate shows the address as ‘Bhond vasti near Ambamala, Sakharwadi, Taluka Phaltan District Satara’ i.e. the address which is mention on the envelop. In the address there is no mention of village Murum where accused is residing. 8. The complainant has examined PW-2 Dattatraya Honap who is serving as Postmaster at Sakharwadi to prove that the notice is duly served on the accused. As per the Chief examination of the said witness, under his jurisdiction village Murum and Ambamala are situated. The envelop Exh.47 discloses that the intimation was given but it was not accepted hence returned. These remarks are correct. In his cross examination, he has admitted that in the year 2003, he was not attached to Sakharwadi Post Office. Admittedly, the envelop was received by his Post Office on 10.3.2003. It means that when the said envelop was received by his post office, he was not on duty at the said Post Office. Hence he has no personal knowledge regarding service. He personally does not know whether the postman has visited the address given on the envelop and given intimation. He has further admitted that Murum is situated about 4 to 5 Kms. away from Sakarwadi. The correct address is Kondevasti, Ambamala Murum. If these admissions are taken into consideration, it is clear that the correct address should be ‘Kondevasti, Ambamala, Murum’. But on the envelop notice address is mentioned as ‘Bhond Vasti, Near Ambamala, Sakharwadi’. Hence from this evidence it is clear that, the address given on the envelop and the notice Exh.52 is different than the address on which the accused is residing. Henceit cannot be said that the accused was served. 9. But on the envelop notice address is mentioned as ‘Bhond Vasti, Near Ambamala, Sakharwadi’. Hence from this evidence it is clear that, the address given on the envelop and the notice Exh.52 is different than the address on which the accused is residing. Henceit cannot be said that the accused was served. 9. Thus it is clear that the notice was sent on incorrect address and hence in my view the presumption that the said notice was served will not be in favour of the complainant. In the case of Mrs.Rosi Kukreja Vs. Finance Associates reported in 58 2005(1) D.C.R. 58 , it is observed that:- "The notice sent on incorrect address, presumption as to service of notice is not available". 10. Thus, looking to the evidence on record, I am of the opinion that the view taken by the learned Magistrate is a reasonable and possible view. Hence, no interference is called for. Application for leave to file appeal is rejected.