VPH IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL APPLICATION No. 3517 OF 2006 Smt.Jasoti Kishanchand Nathani Applicant (Orig. Complainant) Vs. 1. The State of Maharashtra ) Respondents ) 2. Vijay Pandurang Patil ) (Orig. Accused) Mr. A. Q. Ansari, for the Applicant. Mr. V. B. Konde-Deshmukh, for the Respondent No.1 State. CORAM : Smt. V. K. TAHILRAMANI, J. DATE : JUNE 18, 2008. PC :- . The applicant/original complainant has filed this application for leave to appeal against the judgment and order dated 12th June 2006 passed by the learned Special Metropolitan Magistrate, 50th Court, Vikroli at Bombay in C.C. No.423/SS/05. By the said judgment and order, the learned Magistrate has acquitted the respondent No.2/original accused, for the offence punishable under Section 138 of the Negotiable Instruments Act. 2. The case of the complainant is that she has lent a friendly loan of Rs.70,000/- to the accused. - 2 - For the repayment of said loan, respondent No.2/accused issued the cheques. As the cheques in question were dishonoured, she had issued notice to the accused. As payment was not made by the accused to the complainant within the stipulated period, complaint came to be filed by her. 3. I have heard learned counsel Mr. A. Q. Ansari for the applicant and learned APP Mr. V. B. Konde-Deshmukh , for the respondent-State. I have perused the judgment and order as well as the evidence in the present case which has been annexed by the complainant. 4. In order to establish that the notice was sent to the correct address and it was received by the accused, complainant examined Ramlakhan, the P.R.O. from Saki Naka Sub Post Office. This witness has produced on record certificate Exh.19 and stated that the postal cover containing the demand notice (in dispute) was duly served on the addressee. It is pertinent to note that it is specific case of the accused that he did not receive the demand notice. Looking to the evidence of PW 2 Ramlakhan it would be necessary to see as to on what address the complainant had sent the demand notice to the accused. The demand notice is at Exh.22. The demand - 3 - notice shows that the address of the accused as proprietor of Jai Ambe Kirana and General Stores, Khairani Road, Saki Naka, Mumbai-400 072. The postal address of the accused mentioned on U.C.P. is "C/o. Eye Cool Opticians, near Punjab Fisheries, Opp. S. J. Studio, Saki Naka, Mumbai-72. P.W. 1 Ratan Nathani while giving evidence for the complainant stated the same address. Now, if the accused was proprietor of Jai Ambe Kirana & General Stores, then why the complainant sent the notice addressed at "C/o. Eye Cool Opticians, bnear Punjab Fisheries, Opp. S. J. Studio, Saki Naka, Mumbai-72". The complainant herself examined the proprietor of "Eye Cool Opticians" Mr. Virendra Singh. He stated that the accused is in no way concerned with his firm. He does not know whether Jai Ambe Kirana & General Stores was situated there. PW 1 Ratani admitted that Jai Ambe Kirana and General Stores was demolished by the B.M.C. during road widening. The accused has also stated in his evidence that in the year 2002 his shop was demolished by the B.M.C. In such situation, how the notice was sent at the address of a shop which was already demolishied. It appears that letter was delivered at "Eye Cool Optiians" with which the accused is not concerned. In short, there is no cogent and convincing evidence to hold that the demand notice was sent by the complainant at the - 4 - correct address of the accused and it was received by the accused. 5. Looking to the evidence on record, I am of the opinion that the view taken by the learned Magistrate is a reasonable and proper view. Hence, no interference in the order in question is called for. In the result, the application for leave to appeal is rejected. Sd/- [Smt. V. K. TAHILRAMANI, J.]