1 APPLN-5464.10 IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE SIDE CRIMINAL APPLICATION NO.5464 OF 2010 Mahindra & Mahindra Financial Services Ltd. .... Applicant Vs. Vasant Waman Patil & Anr. .... Respondents Shri V.V. Salunkhe i/b Ms Priya Crasto for the Applicant. Shri Shashank Borade for Respondent No.1. Shri S.A. Shaikh, APP, for the State. CORAM: R.C. CHAVAN, J. DATED: JULY 27, 2011 P.C: This is an application for leave to file appeal against the acquittal of the respondent for the offence punishable under Section 138 of the Negotiable Instruments Act ordered by the learned Metropolitan Magistrate, 33rd Court, Ballard Pier, Mumbai in respect of six cheques. The respondent had borrowed certain sums from the applicant for the purchase of a commercial vehicle. Upto May 2007 he had been paying the instalments regularly. In June 2007 there was a default. Therefore, 2 APPLN-5464.10 the applicant seems to have put the six cheques of Rs.12,150/- each, which were issued towards instalments, for realization. Those cheques bounced and therefore the complaint was filed. The learned Magistrate held that the applicant should have issued a notice before putting these cheques for realization. He also held that on 18-6-2007 six instalments were not at all due and therefore there was no question of putting the six cheques for realization. The learned counsel for the applicant points out that in terms of Clause 14 of the Loan Agreement, upon a default the applicant was entitled to declare that all the sums which were due would become recoverable and entitle the applicant to take actions as contemplated under the said Clause 14. The learned counsel for the respondent submits that this declaration would necessitate issuance of a notice. If a notice was contemplated, the draftsman of the instrument would have used the word "notice". Since all that is required is a declaration by the applicant possibly for his satisfaction and since it cannot be said that the respondent had not committed any default, the view taken by the learned Magistrate would require a re-consideration. Hence leave granted. Appeal admitted. Call for the R & P.. 3 APPLN-5464.10 Since the respondent is represented by his Advocate, action under Section 390 of Cr.P.C. is not necessary. The application accordingly stands disposed of. (R.C. CHAVAN, J.)