- 1 - IN IN IN THE HIGH COURT OF JUDICATURE AT BOMBAY THE HIGH COURT OF JUDICATURE AT BOMBAY THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL CRIMINAL CRIMINAL APPELLATE JURISDICTION APPELLATE JURISDICTION APPELLATE JURISDICTION CRIMINAL CRIMINAL CRIMINAL APPLICATION NO.1193 OF 2007 APPLICATION NO.1193 OF 2007 APPLICATION NO.1193 OF 2007 Mrs.Neelam Deepak Mehta ...Applicant vs. Vilas Mahadeo Sawant and Anr. ...Respondents Mr.Mandar Limaye for the applicant Mr.R.D.Suryawanshi for the respondent no.1 Mr.J.P.Yagnik A.P.P. for State CORAM: CORAM: CORAM: A.S.OKA,J. A.S.OKA,J. A.S.OKA,J. DATE DATE DATE : MARCH 3,2009 : MARCH 3,2009 : MARCH 3,2009 P.C.: P.C.: P.C.: 1. The submissions of the learned counsel for the parties were heard on the last date. I have perused the record and the impugned Judgment and Order. 2. This is an application under sub section 4 of section 378 of the Code of Criminal Procedure,1973. A complaint filed by the applicant under section 138 of the Negotiable Instrument Act,1881 has resulted in acquittal. The acquittal is mainly on the ground that the service of notice of demand by the applicant to the first respondent was not duly proved. The address of the first respondent on the complaint is "305, Archana Apartment, Ram Mandir Road, Koliwada, Bhayander (West) Taluka and District Thane". The trial court found that the same address was mentioned on the notice of demand dated 15th September 2004 but on the envelope of the notice, address of the first respondent was mentioned as "Mahavir Nagar, Row - 2 - House No.3, Goddeo Road, Mira Road, Taluka and District Thane". The postal envelope containing notice sent by R.P.A.D. was returned unserved with the remark "unclaimed". 3. The learned counsel for the applicant contended that the address mentioned on the postal envelope is not incorrect as the first respondent is residing at both the addresses. He submitted that in Special Civil Suit No.362 of 2004 filed by the applicant against the first respondent, the stand taken by the first respondent is that he is in possession of the said row house no.3. He submitted that going by the own case of the first respondent he was residing at both the addresses and therefore, when the postal envelope is returned with the remark "unclaimed", the same should have been treated as a good service. He pointed out that apart from sending a notice by registered post A.D., the same was also sent by courier service and acknowledgement signed by the first respondent has been produced on record. He, therefore, submitted that the view taken by the learned trial Judge is totally erroneous. 4. I have carefully considered the submissions. As pointed out earlier, the address mentioned in the cause title of the complaint is of "Flat No.305, Archana Apartment,Rambandhu Road, Koliwada, Bhayander (West), Taluka and District Thane". The same address appears on the notice at Exh.28. However, on the envelope the address mentioned is of Mahavir Nagar "Row - 3 - House no.3"., Goddev Road Mira Road, Taluka and District Thane". Perusal of the record shows that the certified copy of the plaint in special civil suit no.362 of 2004 filed by the applicant against the first respondent is placed on record along with the certified copy of the written statement of the first respondent. In the suit filed by the applicant, she claimed declaration that she is in possession of the said row house no.3. Perpetual injunction was prayed in the suit on the ground that the applicant was in possession of the said row house No.3 and the first respondent was likely to dispossess the applicant. It is true that the said case of the applicant in the suit was contested by the first respondent by contending that he is in possession of the said row house. 5. The case made out by the applicant in her own civil suit is that she is in possession of the said row house. Moreover, the address of the "305, Archana Apartment, Rambhandu Road, Koliwada, Bhayander (West), Taluka and District Thane" has been set out in the cause title of the complaint. The same address is set out in the notice of demand. Surprisingly, on the envelope of the notice, the address of Row House No.3 was mentioned. Reliance is placed on the service effected through courier service. What is exhibited by the trial court is a receipt issued by the courier service which is at Exh.19 which does not bear the signature of the consignee i.e. first - 4 - respondent. A xerox copy of the alleged delivery of receipt no.ro8678 has been annexed to the Exh.19. However, original of the said receipt is not produced and alleged signature thereon of the first respondent is not proved. 6. As far as service through post is concerned, the applicant has not examined the postman. The failure to examine the Postman to show that the intimation was served to the 1st respondent becomes relevant when the address on the postal envelope is different from the one mentioned on the notice. In the circumstances, the view taken by the learned trial Judge that the applicant has failed to prove the service of notice to the first respondent is certainly a possible view which could have been taken on the basis of evidence on record. Even if the submissions of the learned counsel for the applicant are accepted, at highest what can be said is that another view could have been taken. It is no ground to interfere in an appeal against acquittal. Service of notice of demand is a condition precedent for filing a complaint under section 138 of the Negotiable Instrument Act,1988. No case is made out for interference. Application is rejected. 7. It is made clear that none of the observations made in this order shall not be construed as any finding on the rights and liabilities of the parties and all issues as regards rights and liabilities will be decided in the appropriate - 5 - proceedings. JUDGE JUDGE JUDGE