[-1-] IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL APPLN.NO.1963 OF 2007 IN CRI.APPEAL NO. OF 2007 R.S.Sodhi ..Applicant Vs. Sachin Singh Thakur and Anr. ..Respondents ... Mr.J.B.Mishra Advocate for Applicant Mr.Vinayak K.Kotti Advocate for Mr.S.P.Narkar Advocate for Respondents ... CORAM: SMT.V.K.TAHILRAMANI,J. CORAM: SMT.V.K.TAHILRAMANI,J. CORAM: SMT.V.K.TAHILRAMANI,J. DATE : JUNE 06, 2008 DATE : JUNE 06, 2008 DATE : JUNE 06, 2008 P.C. P.C. P.C. 1. The applicant-original complainant has preferred this application for leave to file an appeal against the judgment and order dated 30.4.2007 passed by the learned Metropolitan Magistrate, 10th Court, Andheri, Mumbai in Criminal Case No.2848/S/2002. By the said judgment and order, the learned Magistrate acquitted the Respondent-accused of the offence under Section 138 of the Negotiable Instruments Act. 2. The case of the complainant is that the accused had issued cheque for Rs.2 lakhs to him. The said [-2-] cheque was dishonoured. Hence, the complaint came to be filed. 3. I have heard the learned advocate for the applicant-complainant and the learned advocate for the Respondent. I have perused the impugned judgment and order as well as the evidence. 4. The cheque is dated 15.10.1998. The notice is dated 17.5.1999. If we go by law which was prevailing prior to 6.2.2003, according to law, 15 days notice was mandatory at that time. It is seen that Bank Memo is dated 29.4.1999 and the notice is dated 17.5.1999 i.e. after 15 days. The learned advocate for the applicant has stated that in fact, the Bank Memo shows that the date is 10.5.1999 and if the period is calculated from that date, notice was issued within time. On perusal of the Bank Memo, it is seen that date thereon is 29.4.1999. However, on the top of the Memo, the date 10.5.1999 appears. The complainant has not explained as to how though the original date was 29.4.1999, the date 10.5.1999 appears on the Bank Memo. So also, no witness has been examined to show in what circumstances, the date 10.5.1999 appears on the [-3-] Bank Memo when on the original Bank Memo the date is 29.4.1999. 5. After perusal of the evidence, it is seen that the defence of the accused is that the notice was received by him. Notice was sent to one address at Parel, Mumbai. However, the case of the accused is that he was residing at Ahmednagar on 17.5.1999 i.e. the date of notice. The cheque is dated 15.10.1998. It was drawn on Ahmednagar Merchants’ Co-Operative Bank Ltd. The complainant has also admitted in his cross examination that it is true that he was knowing that the accused was residing at Ahmednagar at the time when the cheque was received from the accused. If the summons issued in the present case is perused, it is seen that summons was also sent to Ahmednagar address. Since the summons was issued at the address of Ahmednagar, it becomes clear that complainant was aware of the address of the accused at Ahmednagar. The case of the complainant however, is that the accused has stated that he was residing at Parel in Mumbai and hence, notice was sent at the said address and envelop was returned back as unclaimed. When the accused has stated in his specific defence [-4-] that he has not received the notice and that he was residing at Ahmednagar at the relevant time, in such case, it was necessary for the complainant to examine the witness from the post office to show that notice was indeed sent to the accused by him but not claimed by the accused. 5. 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 and hence, no interference is called for. Application for leave to file appeal, is rejected. [SMT.V.K.TAHILRAMANI, J.] [SMT.V.K.TAHILRAMANI, J.] [SMT.V.K.TAHILRAMANI, J.]