1 Cri-A-834-11.sxw IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION Mhi CRIINAL APPLICATION NO. 834 OF 2011 IN CRIMINAL APPEAL NO.. OF 2010 Deepak Hiralal Shah ... Applicant (Orig. complainant) vs. 1. Nilesh Rasiklal Waghela 2. State of Maharashtra Respondents (No. 1 - orig. accused No.1) Mr.Ganesh Gole, i/b. Durgesh P Jaiswal,Advocate, for the applicant. Mr.Manish K.Mazgaonkar,Advocate for the respondent No.1. Smt. S.V.Sonawane, APP, for respondent No.2 - State. CORAM: J.H.BHATIA,J. DATE : 8th September, 2011. P.C. 1. Heard the learned Counsel for the parties. Perused the copies of the relevant documents and the impugned judgment. 2. This application is filed by the original complainant seeking leave to prefer appeal against acquittal for the offence under Section 138 of Negotiable Instruments Act. According to the complainant, in discharge of his liabilities, the respondent No.1 had issued a cheque dated 18.5.2004 for amount of Rs.94,000/-. 2 Cri-A-834-11.sxw The cheque was presented to the drawee Bank through the complainant's banker, but it was returned with endorsement "Refer to drawer" which indicated that the amount was not sufficient in the account. According to the complainant, thereafter he had issued a statutory notice on 1.6.2004 to the accused under Regd. Post A.D. and inspite of service of notice, payment was not made within the period. 3. The complainant examined himself and led the evidence. While the trial Court held that the accused had issued a cheque in discharge of his legally enforceable debt or liability, the trial Court also found that inspite of his oral deposition about issuance of notice by Regd. Post A.D. he had not produced any original document to establish that the notice was in fact sent by him by Regd. Post A.D. He did not produce any receipt from the postal authority about despatch of notice by Regd. Post nor he produced the acknowledgment nor certificate of posting under which it was sent. According to him, he had not received the acknowledgment. He had simply sent a letter to the Post Master about information about service of notice. The complainant claimed that the notice sent to the accused by Regd. Post was returned with the remark "unclaimed". That original returned envelope was also not produced before the Court. The learned Counsel for the complainant tried to contend that these documents were produced as pointed out in the affidavit filed in examination-in-chief. In para 7 of that 3 Cri-A-834-11.sxw affidavit, he referred to despatch of notice by Regd. Post and under certificate of posting. However, it clearly shows that annexed documents marked Exhibits "E" and "F" were the copies of the said acknowledgment and not the original. Similarly, in para 12, he referred to the notice sent to the accused. However, it also shows that the document marked Exhibit "G" was only copy of unclaimed received envelope and not the original. All these original documents were withheld and not produced before the Court. In these circumstances, it is impossible to find any fault with the order of acquittal. Therefore, I see no reason to grant leave to prefer appeal. 4. Leave to prefer appeal is refused. Application stands rejected. (J.H.BHATIA,J.)