..(1).. IN THE HIGH COURT OF JUDICATURE AT BOMBAY IN THE HIGH COURT OF JUDICATURE AT BOMBAY IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL APPELLATE JURISDICTION CRIMINAL APPELLATE JURISDICTION CRIMINAL APPLICATION NO.2100 OF 2007 Shri.Santosh Balu Kumavat. ..Applicant. Versus Shri.Pandit Waman Kumavat and Anr. ..Respondents. ... Mr.R.N.Gite, Adv. for the Applicant. Mr.Y.S.Shinde, APP, for the State. ... CORAM : SMT.V.K.TAHILRAMANI,J. CORAM : SMT.V.K.TAHILRAMANI,J. CORAM : SMT.V.K.TAHILRAMANI,J. DATED : 13th June, 2008. DATED : 13th June, 2008. DATED : 13th June, 2008. P.C.: 1. The applicant-orig.complainant has filed this application for leave to file appeal against the judgment and order dated 17th April, 2007 passed by the learned J.M.F.C. at Nashikroad, Nashik in Summary Criminal Case No.1808 of 2003. By the said judgment and order, the learned Magistrate acquitted respondent No.1-orig. accused of the offence under Section of 138 of N.I.Act. 2. The case of the complainant is that he and the accused are close relatives and the ..(2).. complainant had given a loan of Rs.1 lakh to the accused. By way of repayment of the said amount the cheque in question came to be issued. The cheque was dishonoured, hence complaint came to be filed. 3. I have heard the learned Counsel for the applicant-Orig.complainant. Perused the judgment and order of the learned Magistrate as well as the evidence which has been produced by the learned Counsel for the applicant-orig.complainant. 4. The learned Magistrate has acquitted the respondent No.1-orig.accused on the ground that the complainant has failed to prove that notice was served on the accused. It is pertinent to note that the complainant admitted in his cross-examination that he has not filed documentary evidence to show that he had issued demand notice to the accused. It is an admitted fact that date of receipt of notice is not mentioned in the complaint. The complainant has further stated that he has not filed postal acknowledgement due receipt to show that notice ..(3).. was received by the accused. 5. Crucial point in this case is whether the complainant issued notice for demand of cheque amount and the accused received the said notice. It was argued that the complainant had issued notice on 16.7.2003 through Adv. Kokate and the accused received the said notice on 19.7.2003. But postal acknowledgement due receipt was with Adv.Kokate and therefore the complainant could not file it in time. Reliance was placed on the decision of the Supreme Court in the case of K. K. K. Bhaskaran Vs. Shankaran Vaidhyan Balan, 2000(1) Bhaskaran Vs. Shankaran Vaidhyan Balan, 2000(1) Bhaskaran Vs. Shankaran Vaidhyan Balan, 2000(1) Mh.L.J. 193 Mh.L.J. 193 Mh.L.J. 193. In this case the Hon’ble Supreme Court held that where the notice is returned as unclaimed and not as refused, it can be deemed to have been served on the sendee unless he proves that it was not really served and that he was not responsible for such non service. When notice is returned by the sendee as unclaimed such date would be the commencing date in reckoning the period of 15 days contemplated in clause(c) to the proviso of Section 138 of the Act. ..(4).. 6. The complainant contended that he issued notice to the accused on 16.7.2003 by registered post A.D.. The complainant filed Xerox copy of alleged demand notice at Exh.29. But he has not filed postal acknowledgment due receipt along with the complaint or even at the time of his evidence. It is to be noted here that it is not mentioned in the complaint on what date notice was received by the accused. I would like to point out here that notice of demand for the amount of cheque is essential pre requisite of Sec.138 of N.I.Act. Cause of action for filing complaint u/sec.138 of N.I.Act arises only after the expiry of 15 days period from the date of receipt of notice. 7. Burden was on the complainant to show that he has issued notice and the accused received the said notice and after receipt of notice accused failed to pay amount of cheque within 15 days. But in this case, the complainant neither mentioned the date of receipt of notice in the complaint nor deposed about it before the Court. 8. The complainant filed postal acknowledgment ..(5).. due receipt after closing of final arguments, but failed to get it proved. The complainant has clearly stated in his cross-examination that he did not file postal acknowledgment receipt. 9. The learned Counsel for the applicant has submitted that the complainant had indeed filed postal acknowledgment receipt, however, the same has not been considered by the Court. It does appear that the complainant filed the postal acknowledgment but as observed by me in the earlier para, the same was done only after closing of the final arguments. Moreover it is seen that the complainant failed to get the said document proved by leading evidence. Taking all these facts into consideration, the learned Magistrate acquitted the respondent-accused. 10. 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. ..(6).. (SMT.V.K.TAHILRAMANI,J.) (SMT.V.K.TAHILRAMANI,J.) (SMT.V.K.TAHILRAMANI,J.)