1 Appln 5452-2010 Anand IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL APPLICATION NO.5452 OF 2010 International Asset Reconstruction.Applicant Co. Ltd. V/s. Prakash Shah & anr. .Respondents Mrs.Revati Mohite-Dere, Advocate, for the Applicant Mr.Amit J. Pai, Advocate, for Respondent No.1 Mrs.M.M.Deshmukh, APP, for Respondent No.2 - State CORAM : R.C.CHAVAN, J. DATE : 10TH AUGUST, 2011 P.C. . Heard the learned Counsel for the respective parties. 2. This is an application for leave to file an appeal against acquittal of respondent No.1 ordered by the learned Judge, Court of Small Causes & Special Metropolitan Magistrate, Mumbai, who held that on the date of presentation of cheque, there was legally enforceable liability in existence. However, 2 Appln 5452-2010 he held that there was no sufficient proof of receipt of notice by the accused and therefore, acquitted the respondent. The notice was sent by courier and the acknowledgment which was produced before the learned Magistrate indeed leaves a lot to be desired. However, in view of Judgment of the Supreme Court in C.C.Alavi Haji v. Palapetty Muhammed & anr, reported at 2007 CRI.L.J.3214, the significance on the notice before launching the prosecution is to enable the accused to comply with the demand. The learned Counsel for respondent No.1 submits that the Supreme Court in para 17 has also referred to presumption under Section 27 of the General Clauses Act which would arise when the notice was sent by RPAD and therefore, he submits that sending notice through courier with an acknowledgment which is produced on record would not be adequate compliance with the requirement in order to draw any presumption in favour of the service of 3 Appln 5452-2010 notice. He submits that the observations of the Supreme Court in para 17 have to be read in the context of Provision of Section 27 of the General Clauses Act. Now, these provisions have to be read in the context of requirement of proviso of Section 138 of the Negotiable Instruments Act as also the recent developments of permissibility of services of notices through courier which has also been recognized in the Code of Civil Procedure. Therefore, the expression service by post would also include service by courier. In any case, this is the matter which can be argued. There was no reason for the complainant which is the International Asset Reconstruction Co. Ltd. formed under the Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002 (hereinafter referred to as the SARFAESI ACT) to avoid sending a notice and launch a prosecution knowing that it would fail. Argument of the learned Counsel about notice 4 Appln 5452-2010 which was sent being different than the one which is annexed with the complaint also could be looked into at the time of final hearing of the appeal, since two notices made available for my perusal by the learned Counsel for the applicant do not show that they are materially different though, there may be some minor differences here and there. In view of this, leave granted. 3. Admit. 4. Call for R & P. 5. Action under Section 390. (R.C.CHAVAN, J.)