Judgment:
Oral Judgment:
This is an appeal preferred by the original complainant questioning the legality and correctness of the acquittal recorded by learned Judicial Magistrate (First Class), Hadgaon in Summary Criminal Case No.459 of 1995 acquitting the first respondent of the offence punishable under section 138 of the Negotiable Instruments Act by his judgment and order dated 10th March, 1998.
2. After the present appeal came up on the board of final hearing, as none had appeared for the appellant, this court suo moto issued a notice to the appellant and his advocate. It appears that in response to the said notice, none appeared for the appellant. The report of service of the notice on the appellant is also received in this court to the effect that the learned counsel who was originally appearing for the appellant has stopped the practice. Faradsheet shows that after service of notice on the appellant, the appeal was adjourned on four occasions. Again a notice was directed to be served on the appellant by order dated 3rd April, 2012, which notice was also served on the appellant on 14-05-2012 as per the report received from learned Judicial Magistrate (F.C.), Hadgaon. Thereafter also, the appeal was adjourned on two occasions as none had appeared for the appellant. Today also, none appeared for the appellant. Hence, I have perused the appeal memo, the record and proceedings received from the trial court and also perused the judgment impugned in this appeal and the appeal is being disposed of on hearing the learned counsel for the respondent No.1 and learned A.P.P. for the respondent/State.
3. The record and proceedings received from the court below shows that the appellant had filed a complaint before the learned Judicial Magistrate (First Class), Hadgaon, which was numbered as Summary Criminal Case No.459/1995 for the offence punishable under section 138 of the Negotiable Instruments Act, claiming that in the month of May, 1994, the respondent No.1 had taken handloan in the sum of Rs. 40,000/- from him and assured to repay the amount in the agricultural season of the year 1995. In the year 1995, when first respondent was requested to repay the amount, instead of repaying the amount, he had issued a cheque bearing No.583422 dated 05-05-1995, drawn on Nanded District Central Cooperative Bank, Branch at Tamsa, Taluka Hadgaon of his Account No.3088. This cheque was deposited for encashment by the appellant on 6th June, 1995, but the same was returned to the appellant by the bank officer with the bank memo with an endorsement "the funds insufficient". After issuing a legal notice as per the provisions of the Negotiable Instruments Act, which was returned as not claimed, a complaint came to be filed against the first respondent. During the trial, after recording the evidence of the appellant, the learned trial court, vide its judgment dated 10th March, 1998, was pleased to dismiss the complaint on the ground that the appellant failed to prove that the demand notice was duly served on the first respondent.
4. On perusal of the judgment impugned, it is found that in paragraph 10 of the judgment impugned, it is observed by the trial court as follows :
"One of the essential ingredient to prove offence u/s 138 of Negotiable Instruments Act is that after the dishonour of the cheque, the complainant should issue a notice and the notice must be served upon the accused."
It is further observed by the court below that it is the duty of the complainant that the act of serving notice is mandatory before lodging of the complaint. It is the duty of the complainant to prove that the notice was served on the accused. While discarding the evidence on record, it is further observed by the court below that the refusal to accept the notice amounts to valid service, but in the case in hand, the evidence disclosed that the envelope at Exh.-35 is produced by the complainant wherein there is an endorsement "refused therefore returned". It is under the signature of one Kishan. The name of the first respondent is not `kishan', but the first respondent by name is Pandurang Ganpatrao Chavan. It is further observed that there is no evidence led by the appellant by examining the postman, who had attempted to serve the notice on the first respondent and in fact, the respondent No.1 refused to accept the notice, hence, he (postman) put the endorsement `refused to accept' and sent it back to the sender of the notice. For non-examination of the postman or the agency or the concerned official from the post office to prove the endorsement that in reality the first respondent refused to accept the notice and hence, the notice was returned which amounts to valid service, the learned trial court recorded the finding on point No.3 in the negative. For want of valid service of the demand notice on the first respondent, the learned trial court was pleased to dismiss the complaint.
5. On perusal of the grounds of appeal, questioning the correctness and legality of this finding, I do not find that the cogent reasons are given in the grounds of appeal. On the contrary, the finding recorded by the learned trial court that the complaint ought to fail for want of valid service of notice is proper and in the set of these circumstances, that is the only reasoning which can be recorded by the court while dismissing the complainant. In the substance, I do not find any merit in the appeal to interfere in the reasoning recorded by the learned trial court while dismissing the complaint. In the premise, the view taken by the learned trial court while dismissing the complaint is proper. No perversity is noticed in the findings recorded by the learned trial court while recording its finding on point No.3 and rightly acquitting the first respondent of the offence punishable under section 138 of the Negotiable Instruments Act. Thus, the appeal is devoid of any merit.
6. In the result, the appeal is dismissed. The record and proceedings be sent back to the trial court.