1 Ladda IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL APPLICATION NO.2554 OF 2007 Mr Tukaram K. Shinde .. Applicant. vs. The State of Maharashtra and Anr. Mr J. S. Kini i/b Suresh Dubey for the applicant. Mr A.S. Shitole, A.P.P.,for the State. CORAM: : A.R. JOSHI,J. DATE : 25.06.2009. P.C.:- 1. Heard the learned Advocate for the applicant – original complainant. It is the application for leave to file an appeal against the acquittal of Respondent No.2 – original accused in the matter of offence punishable under Section 138 of the Negotiable Instruments Act, 1881 (the N.I.Act for short). A complaint was lodged against the Respondent No.2 for dishonour of cheque for Rs. 3 lakhs. 2. After filing of the present leave petition notice 2 was tried to be served on respondent No.2 by the R.P.A.D. However, for want of address it remained unserved. Subsequently, the latest address of Respondent No.2 was gathered by the applicant. He got such address as given by the accused himself in another matter pending before the Additional Sessions Court at Kalyan, District Thane and it is the matter of appeal filed by the present accused challenging his conviction in another similar such matter of proceedings under Section 138 of the N.I.Act and in that matter the complaint was lodged by the present applicant for dishonour of another cheque for the amount of Rs. 1.5 lakhs. As the said matter ended in conviction accused preferred appeal at Sessions Court, Kalyan. As such, after finding the current address of present respondent No.2 notice under R.P.A.D., was tried to be served on him. However, it was not claimed, returned unserved and which is filed in the present matter by the complainant along with the affidavit mentioning that it was the last known address of the Respondent No.2. As such, though there is no presence of Respondent No.2 before the Court, present application is heard and present order is being passed. 3. It appears that the Trial Magistrate was influenced by the defence of the Respondent No.2 accused as to he had not given any cheque for repayment of legal 3 enforceable liability. At two occasions, in the statement of the accused he had mentioned such averments, however it was taken by the Magistrate as denial of the accused giving any such cheque and denying the signature on the dishonoured cheque. It appears that the evidence of bank official verifying the signature on the dishonoured cheque and that of on the account opening specimen signature card, mentions that both the signatures tally. 4. Considering these circumstances, in the opinion of this Court, there is a triable issue to be dealt with in the appeal in order to verify the correctness and legality of the impugned judgment and order of acquittal. Hence, present leave petition is allowed. Appeal is admitted. Call for R and P, if earlier not called. (A.R.JOSHI,J)