1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY NAGPUR BENCH, NAGPUR CRIMINAL APPLICATION (APPA) NO. 354/2011 Sunil Shrikrushna Gawande ..vs.. Shrikant Mahadeo Thakre and anr. Office Notes, Office Memoranda of Coram, Appearances, Courts orders or directions Court’s or Judge’s orders and Registrar’s orders. Ms. D. A. Thakkar, Advocate h/f Mr. C. A. Joshi, Advocate for appellant. Mr. V. J. Deshpande, Advocate for respondent no.1. Mr. M. J. Khan, A.P.P. for respondent no.2. CORAM : M.N. GILANI, J. DATED : DECEMBER 16, 2011 1. Heard both sides. 2. The appellant is original complainant in Summary Criminal Case No. 889/2006 decided on 17.02.2011 by Judicial Magistrate First Class, Akot, whereby respondent no.1-original accused was acquitted of an offence punishable under Section 138 of the Negotiable Instruments Act. 3. On 27.04.2006, the respondent no.1 had issued cheque of an amount of Rs. 1,00,000/- in favour of the appellant. When it was presented to the Bank, it was dishonoured for the reason that the respondent no.1 had “insufficient funds” in his account. The mandatory notice as contemplated under the provisions of the Negotiable Instruments Act, was issued. Since, the respondent no.1 failed to make payment, a complaint came to be filed. The learned Magistrate held that the cheque was issued by respondent no.1 to discharge existing liability and it was 2 dishonoured because of insufficient funds in the account of the respondent no.1. The learned Magistrate found fault with the mandatory notice in respect of the number of the cheque. Instead of cheque number, the appellant had put account number. This was treated as fatal which resulted in acquittal of the respondent no.1. 4. After recording finding in favour of the complainant on the point that the respondent No.1 issued the cheque for existing liability and the same being dishonoured for insufficient funds, whether a flaw in the notice which prima facie appears to be of technical nature can be a ground to acquit the accused is the question that arises in this appeal. I am, therefore, of the view that arguable points are involved in the appeal. Hence, leave as prayed for is granted. 5. Appeal : Admit. Call record and proceedings. 6. Mr. Deshpande, Advocate waives notice on behalf of respondent no.1. Hence, action under Section 390 of the Code of Criminal Procedure is dispensed with. The respondent no.1 shall furnish PR Bond in the sum of Rs. 10,000/- with one surety in the like amount before J.M.F.C. Akot within a period of two months from the date of receipt of this order. JUDGE kahale