((-1-)) mst IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL APPLICATION NO.1858 OF 2008 Priyadarshini Nagri Sahakari Pat Sanstha Ltd; Vita. Applicant versus Alamgir Roshan Mulla and anr. Respondents Amit Sale for applicant. Umesh R. Mankapure for respondent no.1. Ms.A.T.Javeri, APP for State. CORAM : A.S.OKA, J. DATE : 18th February 2009 PC : 1. Heard learned advocate for the applicant. This is an application under sub section 4 of section 378 of the Code of Criminal Procedure, 1973 (hereinafter referred to as "the said Code of 1973"). The complaint filed by the applicant under section 138 of the Negotiable Instruments Act, 1881 (hereinafter referred to as "the said Act of 1881") has resulted in acquittal. One of the grounds on which the order of acquittal has been passed by the learned Judge is that the notice of demand which is a condition precedent for filing the complaint under section 138 of the said Act of ((-2-)) 1881 has not been duly served. 2. The learned counsel appearing for the applicant has taken me through the notes of evidence and the relevant documents. His submission is that the applicant has not stepped into the witness box to rebut the presumption under section 27 of the General Clauses Act, 1897. He submitted that admittedly the accused was signing in more than one mode. He submitted that only on the basis of one sentence in the cross examination of the witness examined by the applicant one cannot jump to the conclusion that the notice was not duly served to the accused. He submitted that the accused was deliberately signing in different fashion on different documents. He submitted that the evidence of the Postman has proved the service of the notice. 3. I have considered the submissions. A perusal of the cross examination of the witness Mr.Sadashiv Shitole examined by the applicant shows that he admitted that the signatures appearing on the disputed cheque, loan application and postal acknowledgement are different. He further admitted that the ((-3-)) signatures appearing on the postal acknowledgement at Exhibit-38 and application for loan at Exhibit-41 were different. Though he denied the correctness of the suggestion that the notice at Exhibit-37 was not served to the accused, in the next sentence he specifically admitted that the signature on the postal acknowledgement at Exhibit-38 is not that of the accused. Apart from this, he admitted that in the address mentioned on the notice at Exhibit-37, the house number and identification mark of house of the accused has not been incorporated. 4. It is true that the postman has been examined. The postman stated that the notice was accepted by the accused in his shop. The postman produced the register maintained by the post office. The postman admitted in the cross examination that he was unable to tell the house number of the house of the accused. He produced the register to show that the same bears the signature of the accused of having received the demand notice. 5. The case of the applicant was that the notice was duly served to the accused and the ((-4-)) postal acknowledgement at Exhibit-38 was the evidence of service of notice. There are two clear admissions of the witness examined by the plaintiff. First is that in the address mentioned in the notice, the house number and any other identification mark of the house of the accused was not mentioned and secondly the signature on the postal acknowledgement is not that of the accused. 6. In view of the admissions of the witness examined by the applicant, it was not necessary for the accused to lead evidence for rebutting the presumption. In any case, in view of the clear admission of the witness of the applicant, the conclusion drawn by the learned Judge that the service of demand notice is not proved is certainly a possible conclusion. Even assuming that it is possible to take another view that the notice has been duly served, no interference can be made in an appeal against acquittal. It is well settled position of law that if two views are possible, the one which is in favour of the accused has to be accepted. Moreover, the presumption of innocence is further strengthened by the acquittal of the accused. In case of ((-5-)) prosecution for the offence under section 138 of the said Act of 1881, it is mandatory to prove the service of notice of demand. 7. In the circumstances no case is made out for grant of leave. The application is rejected. 8. It must be made clear that the observations made in this order are for limited purposes of considering the prayer for grant of leave. None of the observations made herein shall be construed as any finding on the rights and liabilities of the parties. (A.S.OKA, J.)