..(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.373 OF 2008 [LEAVE TO APPEAL] IN CRIMINAL APPEAL NO. OF 2008 Sandeep Sales Corporation. ..Applicant. Versus M/s.Shiloh Enterprises and Anr. ..Respondents. .... Mr.A.V.Dhavale, Adv. for the Applicant. Mr.Y.S.Shinde, APP, for the State. .... CORAM : SMT.V.K.TAHILRAMANI,J. CORAM : SMT.V.K.TAHILRAMANI,J. CORAM : SMT.V.K.TAHILRAMANI,J. DATED : 23rd April, 2008. DATED : 23rd April, 2008. DATED : 23rd April, 2008. P.C.: 1. The applicant-orig.complainant has filed this application for leave to file appeal against the judgment and order dated 17th November, 2007 passed by the learned J.M.F.C.,Khadki, Pune in S.C.C.1580 of 2002. By the said judgment and order, the learned Magistrate acquitted the respondent-orig. accused of the offence under Section of 138 of N.I.Act. 2. Heard the learned Advocate for the Applicant-Orig.complainant. Perused the judgment and order of the learned Magistrate as well as the ..(2).. evidence which has been annexed. 3. The learned Magistrate has acquitted the accused on the ground that there is no material to show that the notice was served on the accused. It appears to be the case of complainant that notice was posted on 8.10.2002 from Khadki, Pune and was addressed to the accused at Jadhavnagar, Taluka Haveli, District Pune. Under such circumstances, considering the ordinary course of postal business, the notice was certainly not expected to reach at the Post Office of Jadhavnagar, Taluka Haveli on the same day i.e. on 8.10.2002 itself. However, the witness Sanjay Dedge from the Postal Department deposed in the cross-examination that the letter by UCP in question was with him on 8.10.2002 along with the registered envelop. He has also deposed in the examination-in-chief itself that he has made a remark as "SADAR MALAK JAGA SODUN GELE AHE" at Exh.27 on 8.10.2002 itself. Such testimony of the witness does not appear to be trustworthy in the light of above observation. Thus, the complainant has brought two contradictory aspects on record, ..(3).. one being he has posted the letter containing the notice on 8.10.2002 at Khadki and second one being that said notice was served by the postal authorities at Jadhavnagar, Taluka Haveli on 8.10.2002 itself. Such contradiction would be fatal to the complainant’s case as the fact of sending notice itself comes under shadow of doubt by reason of inconsistency. The accused has denied that he has received any notice from the complainant. So far as examination-in-chief of the complainant is concerned, he has deposed that the notice sent by R.P.A.D. was not received by the accused and said envelop was returned back to the complainant with remark "Addressee has left the place". 4. Admittedly, the notice by registered post is not actually received by the accused. The postal witness namely Sanjay Dedge has deposed that he had the job of distribution of registered post and UCP letters at Nanded Phata for the period October, 2002 as a Postman. So far as registered letter is concerned he deposed that Exh.27 bears the remarks as "addressee has left ..(4).. the place" and that said remark is made by him and also signed by him. He further deposed that he had made enquiry with father of the accused prior to making such endorsement and that the father of accused had his house at Jadhavnagar near tamarind tree. He also deposed that father of accused was present at the address when he had gone to serve the notice. The witness has deposed during the cross-examination that he was knowing father of accused since 14 years. As such it is the case of the complainant that Postman had made enquiry regarding whereabouts of accused with father of accused on 8.10.2002 and accordingly made an endorsement that accused had left the address. However, the accused has proved such contentions to be prima facie false in view of the fact of death of father of accused on 27.11.2001 itself as is evident from the death certificate Exh.62. Thus, the postal witness has in fact made a prima facie false statement when he stated that father of accused was present at the address when he went there on 8.10.2002. As such the fact of enquiry of whereabouts of accused and the information that the accused has left the place is not at all ..(5).. proved beyond reasonable doubt. Moreover, Exh. 27 bears a remark as "not found on 10.10.2002". The Postman deposes that he had made such remark on the said envelop. On scrutiny of the testimony of said Postman, it is clear that his evidence does not stand the test of trustworthiness at all. His statement about taking the letter for delivery on 8.10.2002 itself when the letter was supposed to have been posted on 8.10.2002 itself and also the statement that he made enquiry about accused with father of accused on 8.10.2002 and that he made an endorsement as "Not found on 10.10.2002" are statements which cannot be relied upon at all. Under such circumstances, the complainant could not establish through this witness that the impugned letter or notice was in fact served on the accused. Thus, the complainant could not bring cogent and convincing evidence to prove that he had posted the notice to accused by registered post or even by UCP within 15 days from the date of intimation about dishonour of the cheque or at any particular date i.e. on 8.10.2002. 5. Looking to the evidence on record, the view ..(6).. taken by the learned Magistrate is a reasonable and possible view. 6. It is well settled that if the view of acquittal could have been reasonably arrived at then mere circumstance that the lower Court would have taken a different view, would be no ground to interfere. In this connection, there is no dearth of authorities but to eschew prolixity, I am referring to only two of them i.e. AIR 1971 SC 66 AIR 1971 SC 66 AIR 1971 SC 66 Khedu Mohton and Ors. Vs. State of Bihar and Khedu Mohton and Ors. Vs. State of Bihar and Khedu Mohton and Ors. Vs. State of Bihar and C.Anthony Vs. K.G.Raghavan Nair, (2003) 1 SCC 1 C.Anthony Vs. K.G.Raghavan Nair, (2003) 1 SCC 1 C.Anthony Vs. K.G.Raghavan Nair, (2003) 1 SCC 1. In the case of C.Anthony C.Anthony C.Anthony, the Supreme Court has observed that unless the findings of the trial Court are perverse or contrary to the material on record, the High Court cannot in Appeal substitute its findings, merely because another contrary opinion was possible on the basis of material on record. As stated earlier, 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.)