1 Anand IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL APPLICATION NO.1211 OF 2011 Maruti Shivaji Bhosale .Applicant V/s. Balkrishna Hirman Gaikwad & anr. .Respondents WITH MISC. APPLICATION NO.692 OF 2011 IN CRIMINAL APPLICATION NO.1211 OF 2011 Maruti Shivaji Bhosale .Applicant V/s. The State of Maharashtra & anr. .Respondents Mr.M.N.Rajput, Advocate, for the Applicant Mr.K.V.Saste, APP, for the Respondent - State CORAM : R.C.CHAVAN, J. DATE : 12TH DECEMBER, 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 Metropolitan 2 Magistrate, 6th Court, Mazgaon, Mumbai on the ground that the notice had been received by wife of the accused and not by the accused himself. The learned Magistrate seems to have relied on Judgment of two Judge Bench in M.D.Thomas Versus P.S.JALEEL AND ANOTHER, reported at (2009) 14 Supreme Court Cases 398. In C.C.ALAVI HAJI Versus PALAPETTY MUHAMMED AND ANOTHER, reported at (2007) 6 Supreme Court Cases 555 a three Judge Bench considered significance of notice under Section 138 of the Negotiable Instruments Act, 1881 and observed as under :- 16. As noticed above, the entire purpose of requiring a notice is to give an opportunity to the drawer to pay the cheque amount within 15 days of service of notice and thereby free himself from the penal consequences of Section 138. In Vinod Shivappa this Court observed: (SCC p.462, para 13) One can also conceive of cases where a well-intentioned drawer may have inadvertently missed to make necessary arrangements for reasons beyond his control, even though he genuinely intended to honour the cheque drawn by him. The law 3 treats such lapses induced by inadvertence or negligence to be pardonable, provided the drawer after notice makes amends and pays the amount within the prescribed period. It is for this reason that Clause (c) of proviso to Section 138 provides that the section shall not apply unless the drawer of the cheque fails to make the payment within 15 days of the receipt of the said notice. To repeat, the proviso is meant to protect honest drawers whose cheques may have been dishonoured for the fault of others, or who may have genuinely wanted to fulfil their promise but on account of inadvertence or negligence failed to make necessary arrangements for the payment of the cheque. The proviso is not meant to protect unscrupulous drawers who never intended to honour the cheques issued by them, it being a part of their modus operandi to cheat unsuspecting persons. 17. It is also to be borne in mind that the requirement of giving of notice is a clear departure from the rule of criminal law, where there is no stipulation of giving of a notice before filing a complaint. Any drawer who claims that he did not receive the notice sent by post, can, within 15 days of receipt of summons from the court in respect of the complaint under Section 138 of the Act, make payment of the cheque amount and 4 submit to the court that he had made payment within 15 days of receipt of summons (by receiving a copy of complaint with the summons) and, therefore, the complaint is liable to be rejected. A person who does not pay within 15 days of receipt of the summons from the court along with the copy of the complaint under Section 138 of the Act, cannot obviously contend that there was no proper service of notice as required under Section 138, by ignoring statutory presumption to the contrary under Section 27 of the GC Act and Section 114 of the Evidence Act. In our view, any other interpretation of the proviso would defeat the very object of the legislation. As observed in Bhaskaran case if the giving of notice in the context of Clause (b) of the proviso was the same as the receipt of notice a trickster cheque drawer would get the premium to avoid receiving the notice by adopting different strategies and escape from legal consequences of Section 138 of the Act. In view of this, leave granted. Admit. Call for R & P. Action under Section 390. (R.C.CHAVAN, J.)