1 Appln.: 4558/2010 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL APPLICATION NO.4558 OF 2010 Rajul R. Desai …… Applicant Vs. Narendra Tayade & Ors. …… Respondents Mr. Kishwar Mirza, Advocate for applicant. Mr. P.A. Pol, APP for State. CORAM : Smt. R.P. SondurBaldota,J. Date : 25th February 2011. PC.: 1. This is an application for leave to prefer appeal against the judgment and order of acquittal of the respondents for the offence punishable under Section 138 Negotiable Instruments Act. 2. The applicant had given a friendly loan of Rs.2.00 lacs to a proprietary concern by name “Shubhadai Investments”. The amount of loan had been handed over to respondent no.1, who was known to the applicant. In repayment of the loan, he handed over cheque bearing No.661773 dated 29th May 2002, drawn on Kapol Co-operative Bank Limited, Bhayander (East) to her. That cheque when presented for payment, was dishonoured for the reason “insufficient funds”. The applicant 2 Appln.: 4558/2010 then, sent statutory notice to him and filed proceedings under Section 138 Negotiable Instruments Act on non fulfillment of the demand in the notice. But, when the proceedings went for trial, it was realised by the applicant that the proprietary concern of Shubhadai Investments is not of respondent no.1, but is of respondent no. 2, his wife. The cheque in question was also signed not by respondent no.1 but by respondent no.2. Then an application had been filed to join respondent no.2 as an accused to the proceedings. That application though initially rejected by the trial court, was allowed by the Sessions Court. Thereafter the complaint was amended to join respondent no.2 as an accused. 3. By the impugned judgment and order, the trial Court has held that the complainant has failed to prove that the cheque in question had been issued for discharge of the liability alleged in the complaint. Since the complainant has come to the court with the specific plea that she had given the loan to accused no.1 Narendra Tayade, the cheque issued and signed by his wife could not be said to be towards the liability alleged by the applicant. As regards liability of respondent no.2, since admittedly no statutory notice was addressed to her and served upon her, there is no question of the offence punishable under Section 138 Negotiable Instruments Act being committed by her. For making respondent no.2 criminally liable for dishonour of the cheque, 3 Appln.: 4558/2010 it was necessary for the applicant to serve the statutory notice upon her and give her an opportunity to make the payment of the amount of the cheque. The offence under Section 138 Negotiable Instruments Act would get completed only after non fulfillment of the demand within the statutory period. Unfortunately the applicant was unable to give the statutory notice to respondent no.2, as by the time, it was realised by her that the cheque was in fact signed by respondent no. 2, it was too late to give the notice. In the circumstance, no fault can be found with the impugned judgment and order acquitting both the respondents. Hence, the application for leave is rejected. ( Smt. R.P. SondurBaldota, J.)