FARAD CONTINUATION SHEET No. IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE SIDE, BENCH AT AURANGABAD Office Notes,Office Memoranda of Coram, appearances, Court's orders or directions & Registrar's orders. Court's or Judge's orders CRIMINAL APPLICATION NO. 3128/2010 Mr. S.T.Ghute advocate for applicant Mr. K.S.Bhore advocate for respondent. CORAM : SHRIHARI P. DAVARE, J. DATE : 29 th JUNE, 2011. 1. Heard learned counsel for the parties. 2. This is an application preferred by the applicant/original complainant seeking leave to file appeal challenging the judgment and order dated 31.5.2000, rendered by learned Judicial Magistrate First Class, Tuljapur, thereby acquitting the respondent/original accused for the offence punishable under section 138 of Negotiable Instruments Act. 3. I have perused the impugned judgment dated 31.5.2010 and R & P with the assistance of learned counsel for the parties. 4. Apparently considering the oral and documentary evidence adduced and produced by the complainant, it is apparent that initial presumption under section 118 (a) and 139 of the Negotiable Instruments Act is in favour of the complainant. On the said background, accused raised twofold defence i.e : FARAD CONTINUATION SHEET No. IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE SIDE, BENCH AT AURANGABAD Office Notes,Office Memoranda of Coram, appearances, Court's orders or directions & Registrar's orders. Court's or Judge's orders I] That son of the complainant was serving as a teacher in Ashram School of the accused at Diggewadi and said son of the complainant had stolen the disputed cheque in question from the school cupboard and misused it. II] that statutory demand notice was not served upon the accused. 5. However, as regards first defence although suggestion was given to the complainant in his testimony in that respect which were obviously denied by him, the respondent did not examine himself nor examined any defence witness and even not whispered anything about said transaction in his statement recorded under section 313 of Code of criminal Procedure, and therefore, question arises whether accused has probabilized said defence. 6. As regards the second ground it appears from the R and P that, statutory demand notice was sent to the accused by RPAD and UPC and acknowledgment of RPAD and UPC certificate are produced on record at Exh.29 and 28 respectively and addresses therein is apparently correct addresses of the accused. FARAD CONTINUATION SHEET No. IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE SIDE, BENCH AT AURANGABAD Office Notes,Office Memoranda of Coram, appearances, Court's orders or directions & Registrar's orders. Court's or Judge's orders 7. Hence, matter requires consideration and therefore present application seeking leave to file appeal is allowed and present application be treated as APPEAL. 8. ADMIT. Mr. Bhore learned advocate for the respondent waive service of notice after admission. 9. Accused to furnish same bail but to execute fresh P.R. Bond before trial court within four weeks. R & P be sent back to the concerned court. [ SHRIHARI P. DAVARE, J. ] --- Dt : 29.06.2011 aaa/3128.10