( 1 ) IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD CRIMINAL APPLICATION NO. 2631 OF 2009 The Moti Urban Co-operative Bank Ltd., .. Applicant Taloda, Branch Taloda [ori.complainant] Versus Bijya Damiya Vasave .. Respondent [ori.accused] Shri S.P. Brahme, Advocate for the applicant. Shri A.G. Magare, Advocate for the respondent. CORAM : P.R. BORKAR,J. DATED : 19.01.2010 P.C. :- 1. This is an application for leave to file appeal against order of acquittal passed by the learned Additional Sessions Judge, Shahada, while deciding Criminal Appeal No. 2 of 2005, thereby he reversed the judgment and order passed by the learned Judicial Magistrate, First Class, Taloda, in S.T.C.C. No. 394 of 2002, decided on 10.02.2005 convicting the present respondent of offence punishable under section ( 2 ) 138 of the Negotiable Instruments Act. It is this order which is sought to be challenged in the appeal. 2. Few facts giving rise to this application are that the applicant is original complainant – Co-operative Bank, registered under the Maharashtra Co-operative Societies Act. It had given loan of Rs. 2,40,000/- on 07.09.2000 to the respondent. The amount of Rs. 2,68,216/- was due on 21.03.2002. Towards the same, the respondent issued cheque drawn on State Bank of India, Akkalkuwa. The cheque was dishonourned on 23.03.2002. Thereafter, notice was issued on 27.03.2003 by registered post A.D. demanding the amount within 15 days. However, no amount was paid though the respondent received the notice on 05.04.2002. Hence, complaint for the offence punishable under section 138 of the Negotiable Instruments Act is filed. 3. The learned Additional Sessions Judge passed order of acquittal on three grounds. Firstly, that it was not proved that the notice was served on the respondent. Secondly, that the notice was in English and respondent was illiterate Adiwasi, living in tribal area and therefore he ( 3 ) could not understand the notice and it was not proper notice. Thirdly, the amount outstanding was less than Rs. 2,68,216/-. The Court also believed that it was bank cheque and the bank after filing blank spaces presented it and the amount was not legally due. Therefore, no offence punishable under section 138 of the Negotiable Instruments Act was committed. 4. Heard Adv. Shri S.P. Brahme for the applicant and Adv. Shri A.G. Magare for sole respondent. Both have taken me through the judgments & orders, evidence and record & proceedings. 5. So far as first ground is concerned, in para 9, the Sessions Court observed that postal acknowledgment of the notice is produced at Exh.40 and it is signed by one Jerma Damiya. Name of the respondent is Bijya Damiya. Perhaps, Jerma might be brother of the respondent. But, nowhere in the evidence, the complainant tried to prove that they are real brothers, residing jointly and the service is proper. The learned advocate for the applicant relied upon case of Armstrong Builders and Developers V/s. Vishvanath Naik, 2007 (1) Mh.L.J. 787. The learned advocate for the applicant ( 4 ) relied upon para 7 of the said case. I quote following relevant part of para 7. “7. As per the complainant, the notice was received by the accused on 7-7-2004. It appears that the complainant was cross-examined in relation to the signature seen on the A.D. card produced by the complainant and the complainant stated that the signature on the A.D. card and the signature on the cheque did not tally. This fact was presumably taken by the learned Magistrate against the case of the complainant observing that the complainant had not identified the signature on the A.D. card. It has been submitted on behalf of the accused, by Ms. R. Kamath, the learned Counsel, that in the absence of the complainant proving the signature on the A.D. card, no presumption of service is available in favour of the complainant. There is no dispute that the statutory notice was sent by the complainant upon the correct address of the accused and was received at the given address. It is therefore very clear that once the notice was received at the address at which it was dispatched, the presumption under section 27 of the General Clauses Act was clearly available in favour of the complainant. A similar situation was considered by the Apex Court in the case of K. Bhaskaran Vs. Sankaran Vaidhyan Balan and another, 2000 (1) Mh.L.J. (S.C.) 192 = (1997) 7 SCC 510. The principle incorporated in section 27 of the Act, observed the Supreme Court, can profitably be imported where the sender has dispatched the notice by post with the correct address written on it and then it can be deemed to have been served on the sender unless he proves that it was not really served and that he was not responsible for such non-service. It was not for the complainant to prove that the signature on the A.D. card was not that of the complainant.” ( 5 ) . In the case before that Court, address was correct. The acknowledgment was shown to have been signed and therefore presumption was raised that the notice has been received by the accused himself. 6. It is not mentioned in the present case that it was Jerma Damiya was brother of respondent residing jointly though it is guess of the learned Additional Sessions Judge that Jerma might be brother of Bijya. It may be noted that if we see address on Exh.40, the address is as follows:- Shri Bijya Damiya Vasave, A/p. Deomogra Nagar, Akkalkuwa, Tal. Akkalkuwa, Dist. Nandurbar. . It is not that any particular lane or house number is mentioned. In the circumstances, it cannot be said that there was proper service of notice on the respondent. Thus, we do not find the reason given by the learned Additional Sessions Judge, in any way illegal or improper. 7. So far as question of issuing notice in English is concerned, it is argued on behalf of the complainant that the respondent has even signed hypothecation deed, which is ( 6 ) proved at Exh.50, which is a document of 7-8 pages in printed format. Therefore, it cannot be said that the respondent does not know English. On the other hand the learned advocate for the respondent argued that the notice is sent by local bank operating in tribal area to a tribal person, which ought to have been in regional/local language. It was not known whether anybody knowing English was available at the village of the respondent. Moreover action of payment within 15 days was required by the notice. In my opinion, this is a larger issue, which need not be considered while deciding this application, as same can be decided on other two grounds. So, it is kept open. 8. So far as third point is concerned, it is observed in para 11 onwards by the learned Sessions Judge that the cheque was dated 21.03.2002. According to the complainant it was for Rs. 2,68,216/-, which was amount due on the date of issuance of notice. However, the learned Additional Sessions Judge referred to Account extract Exh.48 and therein as on 26.03.2002 amount of Rs. 2,38,483/- was shown due. So, that amount due was less by Rs. 30,000/-. Alternatively, the Sessions Judge also referred to another demand notice Exh.44, ( 7 ) issued on 07.01.2003 and as per said notice as on 31.12.2002, the total amount of Rs. 1,30,239/- was outstanding. The learned Additional Sessions Judge has also come to a conclusion that it was a case of blank cheque having been issued by the respondent to the complainant. Under the circumstances, even assuming that the bank had authority to fill in blank spaces in the blank cheque, still that trust will have to be discharged properly. 9. The learned advocate for the applicant relied upon case of Purushottam s/o. Maniklal Gandhi V/s. Manohar K. Deshmukh and Anr., 2007(1) Mh.L.J.210 for proposition that even blank cheques are good cheques. However, I refer to the decision of this Bench in the case of M/s. Pioneer Drip Systems Pvt. Ltd. & Anr. V/s. M/s. Jain Irrigation Systems Ltd., decided on 17.12.2009. 10. In this case it is proved that the amount of Rs. 2,68,216/- was not due. What was due was Rs. 2,38,483/- as per account extract Exh.48 and as per notice Exh.44 on 31st December, 2002, amount of Rs. 1,30,239/- was outstanding. Therefore as stated in para 12 of the judgment of Additional ( 8 ) Sessions Judge, there should have been proper explanation by the witnesses of the complainant in this behalf and in the circumstances of the case, in my opinion, it is not case where leave to file appeal can be granted. Hence, leave to file appeal is rejected. The Criminal Application stands dismissed. [P.R. BORKAR,J.] snk/2010/JAN10/cra2631.09