..(1).. IN THE HIGH COURT OF JUDICATURE AT BOMBAY IN THE HIGH COURT OF JUDICATURE AT BOMBAY IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL APPELLATE JURISDICTION CRIMINAL APPELLATE JURISDICTION CRIMINAL APPLICATION NO.977 of 2007 [LEAVE TO APPEAL] IN CRIMINAL APPEAL NO. OF 2007 Mrs.Bhavna J. Parekh. ..Applicant. Versus Mr.Nilesh Bhupatrai Mehta & Anr. ..Respondents. ... Mr.Nitin P. Deshpande, Adv. for the Applicant. Mr.Jagdish R. Chomal, Adv. for Respondent No.1. Mr.V.B.Konde-Deshmukh, Adv. for Respondent No.2-State. ... CORAM : SMT.V.K.TAHILRAMANI,J. CORAM : SMT.V.K.TAHILRAMANI,J. CORAM : SMT.V.K.TAHILRAMANI,J. DATED : 5th June, 2008. DATED : 5th June, 2008. DATED : 5th June, 2008. P.C.: 1. The applicant-orig.complainant has filed this application for leave to file appeal against the judgment and order dated 17th January, 2007 passed by the learned Metropolitan Magistrate, 31st Court, Vikhroli, Mumbai in C.C.No.227/SS/2006. By the said judgment and order, the learned Magistrate acquitted respondent No.1-orig. accused of the offence under Section of 138 of N.I.Act. ..(2).. 2. The case of the complainant is that the accused is friend of her husband and he requested for loan of Rs.6 lakhs. Hence she gave Rs.1 lakh in cash and Rs.5 lakhs by way of two bearer cheques. The accused gave her post-dated cheques for Rs.2 lakhs and Rs.3 lakhs. Both the cheques were not honoured, hence complaint came to be filed. 3. I have heard the learned Counsel for the applicant-Orig.complainant and the learned Counsel for the respondent No.1-orig.accused. Perused the judgment and order of the learned Magistrate as well as the evidence which has been produced by the learned Counsel for the applicant-orig.complainant. 4. For an offence to be made out under 138 of the N.I. Act one of the essential ingredients is that the payee makes a demand of the said amount of money by giving a notice in writing to the drawer of the cheque and thereafter the drawer of the cheque fails to make the payment of the said ..(3).. amount of money to the payee within the stipulated time. 5. According to the complainant notice was sent to the accused. The case of the accused is that he has not received the notice. He has examined his mother-in-law Mrs.Kokilaben Kamdar who has stated on oath that she shifted to Ratnagiri in January, 2006 and nobody including the accused was residing in the room where the notice was addressed. She has also stated that the accused at the relevant time was residing in Building No.63, Room No.1862 at Pantnagar, Ghatkoper (E), Mumbai. Thus, it is seen that the accused has denied the fact that he was residing at the address stated in the notice. The notice was sent under UPC & RPAD. The notice sent under UPC did not return back, but, the notice envelope of RPAD returned back with remark "unclaimed". However, as stated earlier the accused has denied that he was residing with his father-in-law in February-2006 when the notice was sent. The evidence of Kokilaben makes this clear. When the accused has denied that he was residing at the ..(4).. said address, it was for the complainant to call the postman and examine him and to ascertain the truth about the residence of the accused. Non-examination of the postman is fatal. The remark "unclaimed" on the RPAD envelope may have presumptive value of service, however, the same has been rebutted in the present case by the accused by examining Kokilaben. Looking to the evidence on record, it cannot be said that the notice was sent on the correct address of the accused which is the essential requirement to draw an inference of service to the addressee. When the notice was not duly served on the accused, non compliance of the same by him, as required under law, does not survive. 6. The learned Counsel for the complainant submitted that in the complaint also the same address of the accused has been mentioned and pursuant to the summons in the said case the accused has appeared in the Court which shows that the address stated in the notice is the correct address of the accused. However, the learned Counsel for the respondent has rightly pointed out ..(5).. that there is nothing on record to show that the summons in this case was served on the accused. He has stated that the accused has appeared in the Court on being informed by a relative. 7. According to the complainant she had provided two bearer cheques for Rs.2,50,000/- and Rs.2,09,188/- to the accused. The complainant admits in her cross examination that she issued cheque of Rs.2,50,000/- in the name of Kunal Enterprises which was the firm of the accused. The accused has denied having any concern with the firm Kunal Enterprises and also the receipt of loan by way of this cheque. The complainant has further stated that she has no documentary proof to show that the firm Kunal Enterprises is of the accused. There appears no documentary proof either in the shape of promissory note or receipt or shop licence or any other document to show that the accused received the cheque of Kunal Enterprises and had acknowledged it as the owner of the said firm. 8. So far as the bearer cheque of ..(6).. Rs.2,09,188/- there is no iota of evidence that it was given to the accused by way of loan. The complainant admits in her cross examination that, she had shown this transaction in her income tax returns. However, she has not produced her Income Tax Returns to support her claim. No reason for non production of the said document was assigned. In the present set of facts wherein the best available document is not produced the creation of legal liability of loan appears doubtful. 9. Looking to all these facts, the defence taken by the accused that blank signed cheques were handed over to the complainant in advance to obtain loan but the said demand was not satisfied, appears probable. 10. 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. Hence, no interference is called for. Application for leave to file appeal is rejected. ..(7).. (SMT.V.K.TAHILRAMANI,J.) (SMT.V.K.TAHILRAMANI,J.) (SMT.V.K.TAHILRAMANI,J.)