1-alp-34-2016-alp-35-2016.doc IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL APPLICATION NO. 34 OF 2016 (Leave to file appeal) WITH CRIMINAL APPLICATION NO. 35 OF 2016 (Leave to file appeal) Abhyudaya Co-op. Bank Ltd … Applicant vs. The State of Maharashtra and Anr … Respondents Mr. Sanjiv Punalekar, for the Applicant Mr. Vinod Pawar i/b. Mr. Shivaji Masal for Respondent No.2. Mr. D.J. Haldankar, APP for the Respondent-State. CORAM : GAURI GODSE, J. DATED : 28th NOVEMBER 2025 ORDER: 1. These applications are filed under Section 378(4) of the Criminal Procedure Code (‘CrPC’) for seeking leave to file an appeal to challenge the orders passed by the learned Magistrate acquitting respondent no.2 for the offence punishable under Section 138 of the Negotiable Instruments Act. 2. Learned counsel for the applicant submits that the loan facilities and cash credit facility were sanctioned in favour of the accused for an amount of Rs. 50,00,000/- and Rs. 2,50,00,000/- respectively. In discharge of the part payment towards the said Page no. 1 of 5 varsha VARSHA VIJAY RAJGURU Digitally signed by VARSHA VIJAY RAJGURU Date: 2025.12.10 10:42:55 +0530 1-alp-34-2016-alp-35-2016.doc liability, the dishonoured cheques were issued by the accused. The cheques were returned with a remark ‘not arranged for’. Hence, the notice was served. Since there was no compliance, the complaints were filed. The issuance of the cheque is not disputed, and the sanction of the loan facility is also not disputed. Hence, according to the learned counsel for the applicant, the presumption under Sections 119 and 139 is in favour of the complaint. In the absence of any rebuttal evidence that the due amount was paid to the bank, the guilt stands proved, and thus, the accused is liable to be convicted for the offence. 3. Learned counsel for the applicant points out that the trial court has disbelieved the service of the demand notice on the ground that the proof of receipt of notice by post was not proved by the complainant. Learned counsel for the applicant, however, submits that the demand notice was served by hand and thus, service of the demand notice would stand proved, though the postal acknowledgement was not produced on record. To support his submissions, learned counsel for the applicant relied upon the oral evidence led by the bank in support of the contention that the dishonoured cheques were towards the part payment of the amounts due to the bank and thus, the dishonoured cheques were Page no. 2 of 5 1-alp-34-2016-alp-35-2016.doc in discharge of a legally enforceable debt. He therefore submits that the applicant be granted leave to file an appeal. 4. I have perused the papers and the evidence relied upon by the applicants. According to the complainant, two cheques were issued towards the loan amount due and payable. Since the parties and facts in both the complaints are the same, and two complaints were filed as the two cheques were dishonoured, both the applications are decided by this common order. 5. I have perused the complaint and the supporting evidence. Though the complainant has stated that the loan facility of Rs. 50,00,000/- and cash credit facility of 2,50,00,000/- were sanctioned in the name of the accused, the complainant has not produced any particulars regarding the actual disbursement and the actual amount due and payable when the cheques were deposited. 6. So far as the service of the demand notice is concerned, though the complainant has contended that the notice was issued by post and also served by hand, neither the acknowledgement of service by hand nor the acknowledgement of service by post is produced on record. Learned counsel for the applicant relied upon a handwritten endorsement on the notice to show that the notice was served on 19th July 2013. However, a perusal of the evidence does Page no. 3 of 5 1-alp-34-2016-alp-35-2016.doc not reflect any particulars as to whom the demand notice was served. Thus, considering the evidence on record, the trial court has disbelieved the service of the demand notice. Even in the oral evidence, no particulars are mentioned about the actual service of the demand notice on the accused. Hence, considering the evidence on record, the allegations made against the accused appear to be doubtful, and sufficient suspicion is created about the allegations in the complaint. 7. In the absence of any evidence that the amount towards the loan and the cash credit facility was disbursed and the amount had actually become due and payable, the cheque amount cannot be accepted as issued towards any legally enforceable debt. Even the service of the demand notice is not proved. Hence, the trial court has rightly held that non-compliance with the service of a demand notice, the accused cannot be prosecuted for the offence punishable under Section 138 of the Negotiable Instruments Act. 8. Considering the evidence on record, the view taken by the trial court is a plausible view that could have been taken based on the evidence on record. There can be interference in an appeal against acquittal if, after re-appreciation of evidence, the only conclusion that could be drawn is that the guilt of the accused is Page no. 4 of 5 1-alp-34-2016-alp-35-2016.doc proved beyond a reasonable doubt. In the present case, there is no ground for granting leave to file an appeal against the order of acquittal. 9. The Applications are dismissed. (GAURI GODSE, J.) Page no. 5 of 5