((-1-)) mst IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL APPLICATION NO.1685 OF 2007 The Hooseini Co-op. Credit Society Limited Appellant versus State and another Respondents S.Sathyanarayanan for appellant. J.P.Yagnik, APP for the State. Mirza Yadulla for respondent no.2. CORAM : A.S.OKA, J. DATE : 20th March 2009 PC : 1. Heard learned advocate appearing for the applicant and learned advocate for the second respondent. This is an application under sub section 4 of section 378 of the Code of Criminal Procedure, 1973. The order of acquittal has been passed in the complaint filed by the applicant against second respondent alleging commission of offence under section 138 of the Negotiable Instruments Act, 1881. 2. The second respondent was convicted by the Trial Court. An appeal was carried by the ((-2-)) second respondent to the Sessions Court. The Sessions Court passed an order of acquittal. The Sessions Court observed that the notice of demand which is a condition precedent for filing a complaint was purportedly served to the second respondent by a private courier and the alleged acknowledgement of the service through courier is placed on record by the applicant. The learned Judge pointed out in the judgement that in the complaint as well as in the affidavit in lieu of examination-in- chief, the case of the applicant was that the notice was served to second respondent through registered post acknowledgement due. The learned Judge held that the presumption under section 27 of the General Clauses Act was not available to a service of notice through courier. 3. The learned counsel appearing for the applicant has invited my attention to the acknowledgement signed by the second respondent issued by the courier service which was placed on record of the complaint. He invited my attention to the affidavit in lieu of examination-in-chief of the applicant and cross examination. He submitted that not even a ((-3-)) suggestion was given in the cross examination to the authorised representative of the applicant that the signature on the acknowledgement was not that of the second respondent. He submitted that the statement in the affidavit in lieu of examination-in-chief that the notice was served to the second respondent has gone unchallenged. He, therefore, submitted that the Sessions Court has committed an error by holding that the service of notice is not proved. 4. I have given careful consideration to the submissions. A perusal of the complaint and in particular paragraph no.5 thereof shows that the applicant has asserted that the notice dated 21st December 2002 was sent by registered post acknowledgement due which was received by the accused on 24th December 2002. In paragraph 9 of the affidavit in lieu of examination-in-chief, the authorised repre- sentative of the applicant has stated that the second respondent received a statutory notice on 24th December 2002 and he was producing the original acknowledgement card. 5. It is not in dispute that the service was ((-4-)) not made by the registered post acknowledgement due but the alleged service is made through courier service. A perusal of the affidavit in lieu of examination-in-chief shows that the authorised representative has not identified the signature appearing on the alleged acknowledgement. He has not stated that the said signature was that of the second respondent. The representative of the courier service has not been examined to prove the service of notice. The second respondent in his statement under section 313 of the Code of Criminal Procedure, 1973 has denied that the notice was received by him. Thus, there was no independent evidence adduced by the applicant to show that the notice was infact served to the second respondent through courier service. As held by the Sessions Court, the benefit of statutory presumption was not available to a service purportedly made through courier. 6. Therefore, the view taken by the Sessions Court that the service of notice is not established by the applicant is certainly a possible view. 7. No case is made out for grant of leave. ((-5-)) The application is rejected. However, it is made clear that the observations made herein are for limited purposes for considering the prayer for grant of leave and none of the observations made herein shall be construed as any finding on the rights and liabilities of the parties. (A.S.OKA, J.)