1 Cri.Revn.194.2010 hvn IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE SIDE CRIMINAL REVISION APPLICATION NO. 194 OF 2010 Smt. Ravindra M. Jatala ... Applicant Versus State of Maharashtra and Anr. ... Respondents Ms. Chaitrali Deshmukh, Advocate for the applicant. Mrs. R.V. Newton, A.P.P. for State. CORAM : K.U. CHANDIWAL,J. DATED : SEPTEMBER 12, 2011 P.C. Heard. 2. Respondent no.2/original complainant absent inspite of serve. 3. The revision applicant questions conviction recorded in Summary Criminal case no. 4110 of 1999 for the offence under section 138 of N.I. Act and confirmed in Criminal Appeal No. 47 of 2008 vide order dated 25.1.2010. 4. The contention of the petitioner all through out was he has no nexus with the firm Shraddha Fabrics of which two cheques were in 2 Cri.Revn.194.2010 question purportedly issued to the complainant. The second aspect which the accused/applicant had through out canvassed was the notice was not served upon him. The address mentioned on UPC service is wrong. The revision applicant does not stay at the said address. 5. Apart from the evidence of the complainant, witness of Canara Bank was examined. He was unable to tell as to who has signed the account opening form. He has only identified the cheques at Exh. 90 and 91 and bank Memo at Exh.92. The account opening form is at Exh. 93. The account was closed. He did not know who was the proprietor of Shraddha Fabrics. He could not even give the date of closing of the account which according to him was closed probably in the year 2001. The accused/applicant had suggested to the complainant that he is not owner of Shraddha Fabrics and even signature on the cheques does not belong to him. The applicant has also suggested that there was cross terms between him and the complainant and one of the associates of the complainant and he has been falsely roped in the case. This stand of the accused applicant was reiterated by him in his statement under section 313 of Cr.P.C. wherein he re-addressed in the same tune and also informed that it is false prosecution. He had no account in the bank. He did not give cheques to the complainant. The cheques does not bear 3 Cri.Revn.194.2010 his signature and he does not know the bank witness. He also does not know why the witness is stating false against him. 6. The learned J.M.F.C. overlooked this position and the stand raised by the accused/applicant. The learned Sessions Judge banged on statement of 313 of Cr.P.C. of accused applicant diverting himself from the discussion of evidence. It is settled legal position, merely based on statement of accused applicant under section 313 Cr.P.C. liability should not be fastened. The basic requirement to prove the case or issuance of cheque or statutory service of the notice was on the complainant which from the record apparently is not adhered to. The proof of UPC service cannot be said to be on the residential address of the accused applicant as he was served with the summons on altogether new address. Both the courts did not venture to these aspects of the mater and recorded conviction. Taking survey of the above facts, the conviction recorded against the accused applicant and questioned hereunder is set aside. Revision application is allowed. (K.U. CHANDIWAL,J.)