- 1 - IN IN IN THE HIGH COURT OF JUDICATURE AT BOMBAY THE HIGH COURT OF JUDICATURE AT BOMBAY THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL CRIMINAL CRIMINAL APPELLATE JURISDICTION APPELLATE JURISDICTION APPELLATE JURISDICTION CRIMINAL CRIMINAL CRIMINAL APPLICATION NO.3751 OF 2008 APPLICATION NO.3751 OF 2008 APPLICATION NO.3751 OF 2008 Mallikarajun Shivlingappa Todkari ...Applicant vs. Sanjay Shankarappa Kalshetti and others ...Respondents Mr.T.D.Deshmukh for the applicant Mr.P.A.Pol A.P.P. for State CORAM: CORAM: CORAM: A.S.OKA,J. A.S.OKA,J. A.S.OKA,J. DATE DATE DATE : APRIL 4,2009 : APRIL 4,2009 : APRIL 4,2009 P.C.: P.C.: P.C.: 1. Heard learned Advocate for the applicant in support of the application under sub section 4 of section 378 of the Code of Criminal Procedure,1973. The applicant filed a complaint alleging commission of offence under section 138 of the Negotiable Instruments Act,1881 (hereinafter referred to as the said Act). The acquittal of the first respondent under the impugned order is on three grounds. The learned Judge held that in the complaint as well as in the affidavit in lieu of examination in chief, it is asserted that the notice of demand issued by the applicant to the first respondent was returned on 2nd January 2006 with the remark ‘unclaimed’. The learned Judge found that the complaint was belatedly filed on 26th February 2006 and there was no application made for extension of period of limitation. The learned Judge dealt with the submission of the applicant that the date of return of notice was 7th January 2006. The learned Judge observed that both in the complaint as well as in the affidavit in lieu - 2 - of examination in chief, the date mentioned is 2nd January 2006 and therefore, the said date will have to be accepted. The second ground is that though the correct address of the first respondent is 49/86, Bhavani Peth, Hanuman Nagar, Solapur, on the postal envelope containing the notice, incomplete address viz. Hanuman Nagar, Solapur was mentioned without referring to house number and Bhavani Peth. The learned Judge therefore observed that it was necessary for the applicant to examine the postman. Therefore, the learned Judge held that the service of notice is not established by the applicant. The third ground is that the presumption under section 139 of the said Act stood rebutted and no independent evidence is adduced by the applicant for establishing the liability. 2. The learned counsel for the applicant invited my attention to the pursis filled by the applicant in which the date mentioned of return of notice is stated as 7th January 2006. He submitted that the perusal of the envelope shows that the date mentioned thereon is 7th January 2006 and not 2nd January 2006. He therefore, submitted that the said finding of the learned Judge is incorrect. He submitted that the notice was sent not only by R.P.A.D but also under Certificate of Posting and therefore, the finding recorded on the aspect of service of notice is completely erroneous. Lastly he submitted that the first respondent did not step into the witness box and - 3 - there was no material on record to rebut the presumption under section 139 of the said Act and therefore, the finding recorded by the learned Judge on this aspect is perverse. 3. I have carefully considered the submissions. Perused the record. It cannot be disputed that the service of notice of demand is a condition precedent for filing a complaint under section 138 of the said Act. Notice was sent by R.P.A.D. as well as under Certificate of Posting. The address mentioned on the postal envelope as well as on the Certificate of Posting is Hanuman Nagar, Solapur. The learned Trial Judge has referred to the bank passbook of the first respondent which is at Exh.42 which records the address of the first respondent as 49/86, Hanuman Nagar, Bhavani Peth, Solapur. Perusal of the record shows that at the time of submitting the bail, the first respondent produced his ration card standing in the name of his father in which he was shown as a member of family of the mother. Even the said ration card showed the address 49/86, Bhavani Peth. This aspect becomes relevant as in the cross examination the applicant admitted that there are about 5 to 6 houses of the persons having name Kalshetti in Hanuman Nagar, Solapur. When a suggestion was given that there are about 50 persons having the name of Kalshetti in Bhavani Peth, the applicant did not deny the correctness of the suggestion but stated that he was not aware. Even in the statement in writing filing by the first respondent before the - 4 - trial court it disclosed that his correct address is 49/86, Bhavani Peth, Hanuman Nagar, Solapur. He stated that he has not received any notice either by R.P.A.D or under Certificate of Posting. 4. In the context of the aforesaid statements of the first respondent in this cross examination, the learned Judge observed that the examination of the Postman was necessary in this case. On the failure of the applicant to examine the Postman, the learned Judge has recorded a finding that the applicant has failed to establish the service of notice to the first respondent. The said finding is certainly a possible finding which could have been recorded on the basis of the evidence on record. Therefore, leave cannot be granted. As far as other two points are concerned, primafacie, it appears to me that the issue regarding limitation could not have been allowed to be raised at such a belated stage after process was issued. As service of notice itself is not established, there is no necessity of considering the aspect of the rebuttal of presumption under section 139 of the said Act. No case is made out for grant of leave. Application is rejected. 5. It is made clear that the observations made in this order are for limited purposes of considering the prayer for grant of leave and none of the observations shall be construed as any finding on rights and liabilities of the parties. Issue - 5 - regarding rights and liabilities of the parties will be considered at appropriate stage. JUDGE JUDGE JUDGE