IN THE HIGH COURT OF JUDICATURE AT BOMBAY IN THE HIGH COURT OF JUDICATURE AT BOMBAY IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL APPELLATE JURISDICTION CRIMINAL APPELLATE JURISDICTION CRIMINAL WRIT PETITION NO. 83 OF 2007 CRIMINAL WRIT PETITION NO. 83 OF 2007 CRIMINAL WRIT PETITION NO. 83 OF 2007 Shri Shardul A. Mehta ...Petitioner V/s. Shri Jayant P. Jain & Anr. ...Respondents Mr.Sanjeev P. Kadam for the Petitioner. Mr.J.P. Yagnik, APP for the State. CORAM : V.M. KANADE, J. CORAM : V.M. KANADE, J. CORAM : V.M. KANADE, J. DATED : FEBRUARY 4, 2008 DATED : FEBRUARY 4, 2008 DATED : FEBRUARY 4, 2008 P.C. :- P.C. :- P.C. :- 1. Heard the learned Counsel for the petitioner. 2. The petitioner takes exception to the order of issuance of process passed by the Metropolitan Magistrate on a complaint being filed by the respondent under Section 138 of the Negotiable Instruments Act. 3. It is submitted that the petitioner was not served with statutory notice as required under Section 138 of the Negotiable Instruments Act which is a condition precedent for filing a complaint before the Magistrate Court. He invited my attention to a document annexed at page 26. He submitted that from the said document, it can be seen that the petitioner was not served and that the packet was returned to the sender. - 2 - He further submitted that even the process which was issued after the complaint was filed by the respondent, initially could not be served on the said office address viz. Raheja Builders, Raheja Complex, Malad (West), Mumbai - 64 and thereafter, the process was served on the new address where the respondent was residing. It is submitted that therefore, since notice was not served, the complaint itself was not maintainable and was liable to be quashed. 4. It is not possible to accept the submission made by the learned Counsel for the petitioner since the question whether the notice is served or not is the question of fact which will have to be established by the complainant during the trial and therefore, it will not be possible for this Court while exercising its jurisdiction under Section 482 of Cr.P.C. and under Article 227 of the Constitution of India to decide whether the notice was served or not. Hence, there is no merit in the submission of the learned Counsel for the accused. 5. Petition is dismissed. - 3 - (V.M. Kanade, J.) (V.M. Kanade, J.) (V.M. Kanade, J.)