1 MNM IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPLICATION NO.3020 OF 2009 IN CRIMINAL APPEAL NO. OF 2009 Kishor P. Shiv ...Applicant (Orig. Complainant) Vs. 1.State of Maharashtra 2.Mrs. Madhavi Yashwant Kulkarni ...Respondents (Orig. Accused) Mr. S.K. Jain, Advocate for Applicant Mr.S.R.Shinde, A.P.P for the State CORAM: SMT.ROSHAN DALVI, J. DATED: 21ST NOVEMBER, 2009 P.C. 1.Notice has been issued on Respondent No.2 and is served. The Respondent No.2 is the original accused, who has failed to appear. The Applicant is the original complainant in a case under Section 138 of the Negotiable Instrument Act. The accused has been acquitted on the ground that the statutory notice has 2 not been served upon the accused. The notice was sent through post. It was sent at the correct address. The intimation of the notice was given not to the accused, but upon the Desk Clerk of the School where the accused served. The Desk Clerk is not examined. 2.The Applicant s Advocate states that the accused herself made an application to examine Desk Clerk, which he had consented. Thereafter, he was not examined. The evidence of the Public Relations Officer of the Post Office does not show service upon the accused. It cannot impute knowledge upon the accused that the claim under her dishonoured cheque is made, which is called upon to be paid as statutorily required. Hence, the acquittal upon the limited evidence before the learned Metropolitan Magistrate about the service is not seen to be incorrect. However, the Advocate for the accused states that he himself may be allowed to examine the Desk Clerk of the School upon whom intimation of the notice sent by registered post by the accused was given. This evidence would further the cause of justice. 3.The complainant must be entitled to take recourse to whichever witnesses are available to prove his or her case. 3 4.It is seen that the evidence on merits is also led and considered. The only issue is with regard to, whether the accused received the statutory notice strictly as contemplated under Section 141 and 142 of the Negotiable Instrument Act. The judgment and order dated 20th January 2009 acquitting the accused under Section 138 of the Negotiable Instrument Act by the learned Metropolitan Magistrate, 31st Court, Vikroli, Mumbai would be required to be set aside and the case remanded back to the Court of learned Metropolitan Magistrate, 31st Court, Vikroli, Mumbai to record further evidence of the Desk Clerk of the School in which the accused served when the notice was issued. 5.Hence, leave to appeal is granted. Call for R & P. 6.Issue notice upon Respondent No.2 that the appeal shall be disposed of on the next date of hearing. 7.The applicant shall send the notice to Respondent No.2 by RPAD and UPC. 8.Appeal shall be on board on 15th December 2009 at 3 p.m. (SMT. ROSHAN DALVI, J.)