1 APPLN 5684 OF 2010 vks IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL APPLICATION NO.5684 OF 2010 Mr. Yogesh Narayan Kelkar .. Applicant. -versus Mangesh R Lad and anr .. Respondent. Mr. Ganesh Gole for the applicant. Mr. Hmanshu Kode, for the respondent No.1. Mrs. V.R. Bhosale, APP for the Respondent State. CORAM: R.C. CHAVAN, J. DATED: 2nd December, 2011 P.C. 1. This is an application for leave to file appeal against the acquittal of the respondent by the learned Judicial Magistrate First Class, Evening Court, Thane for the offence punishable under Section 138 of the Negotiable Instruments Act. The learned Magistrate accepted the case of the complainant on all points except on the question of proof of dishonour of the cheque. The learned Magistrate held that the bank memo which had been produced before the Court did not bear the stamp of bank which issued it and therefore, he held that the dishonour of cheque was not proved under Section 146 of the Negotiable Instruments Act. According to learned Judge, bank memo is prima facie evidence of the fact of dishonour, but this does not mean that the Court cannot 2 APPLN 5684 OF 2010 and should not look into the complainant’s evidence about dishonour. In this case, the cheque itself bear an endorsement by the bank to which it was presented that the account was closed and also bear the stamp of bank i.e. State Bank of India, Naupada, Thane. Apart from this, the learned Magistrate should also have noted the fact that after dischonour of cheque, a notice was issued to the respondent and if the cheque was really not dishonoured, respondent had an opportunity to pay the amount of the cheque or tender the amount at least after the complaint was filed in the Court. In view of this, leave granted. Admit. Call for record and proceeding. Since respondent is represented by learned counsel, action under Section 390 of Code of Criminal Procedure is dispensed with. 2. Application stands disposed of. (R. C. CHAVAN, J.)