1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL APPEAL NO. 1117 OF 2009 Mr.Kishor P. Shiv ...Appellant Vs. The State of Maharashtra and Anr. ...Respondents ------ Mr.S.K. Jain i/b. Mr. P.S. Jain for Appellant Mr.A.S. Shitole -APP for State. ------ CORAM: V.M. KANADE J. DATED: 11TH JUNE, 2010 P.C. 1. Heard the learned Counsel for the Appellant. None-appears on behalf of the Respondents, though they were served. 2. The Appellant is challenging the order of acquittal passed by the Learned Metropolitan Magistrate, 31 st Court at Vikroli, Mumbai acquitting the Respondent No.1 for the offence punishable under section 138 of the Negotiable Instruments Act. 3. The Trial Court was pleased to acquit the Accused only on the ground that the Appellant herein has not 2 proved that the statutory notice which is required to be serviced on the accused before filing of the complaint under section 138 of the Negotiable Instruments Act was only served on the accused. 4. Being aggrieved by the said order, the Appellant filed leave to file an appeal. While exercising the leave to file an appeal, the learned Single Judge of this Court Smt. Roshan Dalvi, J. by her order dated 21 st November, 2009 in paragraph 4 has observed as under: “It is seen that the evidence on merits is also led and considered. The only issue is with regard to, whether the accused received the statutory notice strictly as contemplated under Section 141 and 142 of the Negotiable Instrument Act. The judgment and order dated 20th January, 2009 acquitting the accused under Section 138 of the Negotiable Instrument Act by the Learned Metropolitan Magistrate, 31st Court, Vikroli, Mumbai would be required to be set aside and the case remanded back to the Court of learned Metropolitan Magistrate, 31st Court, Vikroli, Mumbai to record further evidence of the Desk Clerk of the School in 3 which the accused served when the notice was issued.” In paragraph 6, the learned Single Judge has also observed that the appeal shall be disposed of on the next date of hearing and notice to that effect should be served upon the Respondent No.2. Accordingly, notice has been served. However, none appears of behalf of the Respondent No.2. 5. Accordingly, for the reasons stated in paragraph 4 of the said order dated 21 st November, 2009, the impugned judgment and order is set aside. The matter is remanded back to the Trial Court. As directed by the Learned Single Judge of this Court, the learned Magistrate shall comply with the direction given in the order dated 21 st November, 2009. Hearing of the trial is expedited. 6. Fresh notice be issued to the Accused by the learned Magistrate. (V.M. KANADE J.)