1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELATE JURISDICTION CRIMINAL APPLICATION NO.1006 OF 2008 Baban Aba Lohar .. Applicant Versus Manohar Appa Lohar .. Respondents and others Mr. Umesh Mankapura, for the Applicant Mr. Y.M. Nakhwa AGP for Respondent-State CORAM: MRS. MRIDULA BHATKAR, J. DATED: 8th April, 2009 P. C. 1. This is an Application for leave to appeal is filed against the order passed by the JMFC, Atpadi dated 29.2.2008. 2. The Applicant, i.e. Original Complainant has filed the complaint against the accused under Section 138 of Negotiable Instruments Act as the cheque dated 15.8.2007 of Rs.75,000/- was dishonored as the funds were insufficient. The learned Trial Judge, JMFC has acquitted the accused only on the sole ground that notice was not served on the accused. 3. The learned counsel appearing for the petitioner has submitted that the learned Trial judge has, in fact, held all the points in favour of the complainant/applicant. However, he gave negative finding only on the point of service of notice, which is totally erroneous. He has further submitted that the accused-present 2 respondent No.1, was residing at Vilalge Kamath, Tq. Atpadi, Dist. Sangli and on the same address, notice was served. He drew my attention to Exhibit-B of the Appeal Memo i.e. the notice sent by the Advocate of the Accused to the Advocate of the Complainant/Applicant wherein the address of the accused was mentioned as residing at Kamat, Tq. Atpadi, Dist. Sangli. The learned Counsel, on the basis of this recital in the notice, founded his argument that the notice was served to the accused on the address at Kamat and it returned with remark that 'addressee was not residing and was not found' and hence, it is to be considered as deemed service and a good service. 4. The submissions of the learned counsel for the Applicant are not acceptable. If the para-1 of the said notice ( Exhibit-B) is properly read, then in the same in paragraph, the Advocate of the Accused had further mentioned that the Accused, at the relevant time, was residing at Ratnagari due to his service. The learned Trial Judge has considered the aspect that at the relevant time the accused was not residing at Kamat and for service purpose was staying at Ratnagari. 5. The rationale behind the proper service as contemplated under section 138 of NI Act to give time of 15 days for the repayment of the amount mentioned in the cheque is to give breathing time to enable the honest borrower to repay the amount so that further prosecution can be avoided and the matter can be settled 3 at the threshold. The learned Trial judge has rightly discussed the issue of deemed service. 6. The learned counsel appearing for the Complainant has relied on the decision of Hon' ble Supreme Court in the case of C.C. Alavi Haji Vs. Palapetty Muhammed reported in 2008 (1) Mh.L.J. 44, in which the Hon'ble Court, in respect of service of demand notice, has ruled as under: “.. Notice of demand for payment of cheque amount sent by Registered post on drawer' s address- Mandatory requirement under Clause (b) of the Proviso stands complied with..” “Giving of the notice is a process of which receipt is the accomplishment. It is for the payee to perform the former process by sending the notice to the drawer at the correct address and for the drawer to comply with clause (c) of the proviso.” 7. In the said case before the Hon'ble Supreme Court and also in the present case, the endorsement of receipt is similar that the accused was “out of station or accused was out of village”. However, in the present case, the fact that the address of the accused was residing at the relevant time was different i.e. Ratnagari. More important is that this fact was within the knowledge of the complainant/applicant. Para- 1 of the the said notice, as discussed above, is the answer to the question raised by the leaned counsel for the applicant. Hence, there is no proper service of notice and the Trial Court has rightly held that demand notice under Section 138(b) of Negotiable Instruments Act is not duly served. 4 Hence, the application for leave stands rejected. ( MRIDULA BHATKAR, J.)