1 cra.5101.09 hvn IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE SIDE CRIMINAL APPLICATION NO. 5101 OF 2009 Mr. Krishnanlal A. Soi ... Applicant Versus The State of Maharashtra and another ... Respondents Mr. Pratap Singh, Advocate for the applicant. Mr. Rajesh More, A.P.P. for State. CORAM : SMT. R.P. SONDURBALDOTA,J. DATED : JANUARY 05, 2011 P.C. 1. This application filed by the original complainant seeks leave to prefer appeal against the judgment and order dated 18th September, 2009, passed by Metropolitan Magistrate, 50th Court, Vikhroli in Case No. 47/90/SS/2008 acquitting respondent no. 2 of the offence punishable under section 138 of Negotiable Instruments Act. The acquittal of respondent no.2 is based on two grounds. Firstly, that the applicant failed to establish that there was any legally enforceable liability existing against respondent no. 2 and secondly that there was no evidence of service of the statutory notice. 2 cra.5101.09 2. It was the claim of the applicant that he had sent the statutory notice dated 14th January, 1998 by registered post A.D. and under certificate of posting. The packet of R.P.A.D. containing the demand notice had returned with remark "unclaimed". The applicant however, failed to produce the envelope before the court which alone could have established the fact of service of notice. Since the applicant had failed to establish service of demand notice itself, the court held that the applicant had failed to establish offence punishable under section 138 of the Negotiable Instruments Act. No fault can be found with this finding of the trial court. 3. The trial court further found that as per the claim of the applicant he had given loan of Rs. 2 lacs. to respondent no. 2 out of which a sum of Rs. 1 lac. was given in cash and the balance amount by way of two cheques each in the sum of Rs. 50,000/-. The applicant, however, did not produce his passbook to establish that he had given cheques to respondent no.2. He also did not examine any of the Bank officers to establish the fact of issuance of cheques. This evidence according to the trial court was necessary in view of the dispute raised by respondent no. 2 as regards the legally enforceable liability towards the applicant. Further in his evidence, the applicant 3 cra.5101.09 produced an agreement (Exh. 13) with respondent no.2. This agreement belies the contention of the applicant of advancement of loan to respondent no. 2. As per the agreement, the amount given was by way of investment in the business of respondent no. 2. The returns on the investment was to be of Rs.10,000/- p.m. payable on 23rd day of the month. The agreement states that respondent no. 2 had issued 4 cheques to the applicant by way of security for performance of conditions of the agreement. In view of this gross inconsistency in the oral evidence and the documentary evidence, produced by the applicant, the trial court disbelieved the claim of existence of legally enforceable liability towards him. The view taken by the trial court is a possible view based on evidence before the court and hence, the same cannot be disturbed by this Court. 4. The learned counsel for the applicant submits that the trial court did not take into account the admission of respondent no. 2 contained in the precipe dated 22th December, 2008 (Exh.14) by which the respondent had sought time stating that he was ready to settle the dispute by making payment and had applied for loan for that purpose. The precipe for adjournment filed by respondent no. 2 can not help the applicant in bringing home the guilt of respondent 4 cra.5101.09 under section 138 of Negotiable Instruments Act. Hence, application for leave to prefer appeal is rejected. (SMT. R.P. SONDURBALDOTA,J.)