1 appln 496 of 2011 vks IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL APPLICATION NO.496 OF 2011 Masum Mahesh Lakhani .. Applicant. -versus Mrs. Kanchan Keshwani and anr .. Respondents. Mr. Vinod Thakkar, for the Applicant. Mr. N. G. Bane, for Respondent No.1. Mr. Rajesh More, APP for the Respondent State. CORAM: R.C. CHAVAN, J. DATED: 29th July, 2011 P.C. 1. This is an application for leave to file appeal against acquittal of the respondent No.1, for the offence punishable under Section 138 of the Negotiable Instruments Act, rendered by the learned Metropolitan Magistrate, 28th Court, Esplanade, Mumbai, after holding that the complainant had established that the cheque dishonoured was issued towards discharge of legally enforceable liability. The learned Magistrate held that the complainant had failed to prove service of notice upon dishonour of cheque and therefore acquitted the respondent. 2. Learned counsel for the respondent No.1, submitted that the order passed by the learned Magistrate is perfectly justified since, first, the office copy of notice which 2 appln 496 of 2011 was issued to the accused was not tendered in evidence and what was sought to be tendered in Court, was copy of the copy. Secondly, it was submitted that the postal envelope which had been sent to the accused, had been allegedly received back by complainant, but it was not tendered in the Court and therefore, according to learned counsel, the finding of the learned Magistrate are proper and observations of Supreme Court, in C.C. Alvi Haji -vs- Palapetty Muhammed and anr, 2007 Cri. L. J. 3214, are not attracted since that judgment could be helpful to the applicant only after it is shown that the notice was sent on proper address and presumption could be drawn in respect of service of such notice. 3. The observations in para l7 and 18 of the said judgment clearly give impression that the object of notice is to enable the accused to comply with the demand. Supreme Court specifically observed that requirement of giving notice was clear departure from rule of Criminal Law and therefore, Court held that if notice is not served, it does not matter and it would be open to the person to pay within 15 days of receipt of summons the amount demanded. There is no question, therefore, of complainant failing to serve notice. After the service of summons if the respondent was keen to discharge his debt he should have paid the amount and finished off the matter, since the object of giving notice is to enable the 3 appln 496 of 2011 accused to square of his liability and since that object has not been shown to have been achieved in this case, mere technicalities like production of copy of copy or non production of the envelope returned would not help the respondent. Leave granted. Admit. Call for Record and proceeding. (R. C. CHAVAN, J.)