..(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.1074 of 2007 [LEAVE TO APPEAL] IN CRIMINAL APPEAL NO. OF 2007 Losha Ispat Ltd. through Office Assistant S. Kadam. ..Applicant. Versus M/s.Anupam Packaging and 2 Ors. ..Respondents. ... Mr.Rahul Moghe, Adv. for the Applicant. Mr.Rajesh More, APP, for the Respondent No.3-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 6th January, 2007 passed by the learned Special Metropolitan Magistrate, 50th Court, Vikhroli, Mumbai in Case No.1398/SS/2005 (Old Case No.553/s/2003). By the said judgment and order, the learned Magistrate acquitted the respondent Nos.1 & 2-orig. accused of the offence under Section of 138 of N.I.Act. ..(2).. 2. The case of the complainant is that his company supplied material to the accused worth Rs.1,88,349/-. By way of payment for the said goods, the accused issued two cheques. The said cheques were dishonoured, hence notice was sent to the accused. The accused did not pay the said amount, hence complaint came to be lodged. 3. I have heard the learned Counsel for the Applicant-Orig.complainant. Perused the judgment and order of the learned Magistrate as well as the evidence which has been annexed to the appeal. 4. For an offence to be made out under the N.I. Act, it is stated in Section 138 of N.I. Act that one of the essential ingredient 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 amount of money to the payee within the stipulated time. 5. In the present case it is seen that the ..(3).. cheques were dishonoured on 23.10.2003. The case of the complainant is that the demand notice dated 23.10.2003 was sent to the accused by registered post on 24.10.2003 and it was received by the accused on 28.10.2003 and the accused sent reply dated 14.11.2003. According to the complainant, the notice was sent through speed post as well as registered post. However, the case of the accused is that he did not receive any notice. On perusal of the speed post receipt it shows that the demand notice was dispatched to the accused by speed post on 9.1.2004 i.e. after a period of two months and fifteen days from the date of dishonour of the cheque in dispute. The second proviso to Section 138 of N.I.Act requires that the demand notice has to be sent within 30 days from the date of dishonour of the cheque. It may also be stated that the acknowledgement receipt of the speed post notice was not produced on record. The applicant has produced the postal acknowledgement of notice sent by RPAD, however, on perusal thereof it is seen that it does not bear the seal of the postal authority. It is also pertinent to note that though it is a case of the complainant that the ..(4).. accused has received the notice and has sent reply dated 14.11.2003, the said reply has not been produced for the reasons best known to the prosecution. Thus, the essential ingredients under the N.I.Act are not met with. 6. The learned Magistrate has taken into consideration the above aspect as well as other aspects and thereafter he has acquitted respondent Nos.1 & 2-orig.accused. 7. 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. (SMT.V.K.TAHILRAMANI,J.) (SMT.V.K.TAHILRAMANI,J.) (SMT.V.K.TAHILRAMANI,J.)