IN THE HIGH COURT OF BOMBAY AT GOA

CRIMINAL MISC. APPLICATION NO. 50 OF 2012

IN

STAMP NUMBER MAIN NO. 2637 OF 2011

THE VIVIDHA URBAN CO-OPERATIVE

CREDIT SOCIETY LTD. REP. BY SHRI

BALWANTRAO JAIWANTRAO DESSAI.,

... Applicant

Versus

SHRI MARUTI KRISHNA NAIK AND ANR.,

... Respondents

Shri Rohan Desai, Advocate for the Applicant.

Shri H. D. Naik, Advocate for Respondent No.1.

Ms. M. Pinto, Additional Public Prosecutor for Respondent No.2.

Coram:- F. M. REIS, J.

Date:-

25th July, 2012

P.C.:

Heard Shri R. Desai, the learned Counsel appearing for the

applicant, Shri H.D. Naik, the learned Counsel appearing for

respondent no.1 and Ms. M. Pinto, the learned Additional Public

Prosecutor appearing for respondent no.2.

2. The above application is filed by the applicant for leave to

challenge the judgment dated 13/05/2011 whereby the respondent has

been acquitted for charges framed against him under Section 138 of

the Negotiable Instruments Act.

3. Shri R. Desai, the learned Counsel appearing for the applicant

during the course of the submissions has pointed out that the primary

ground on which the respondent no.1 has been acquitted is that there

is no evidence to establish that the notice was actually served on the

respondent no.1. The learned Counsel pointed out that the said

findings of the learned Judge are otherwise not correct and in any

event it cannot lead to acquittal of the respondent no.1 in view of the

judgment of the Apex Court reported in (2007) 6 SCC 555 in the case

of C.C. Alavi Haji V/s. Palapetty Muhammed and Another. The

learned Counsel has taken me through the impugned judgment and

pointed out that the learned Judge has erroneously acquitted the

respondent no.1.

4. On the other hand, Shri H.D. Naik, the learned Counsel appearing

for respondent no.1 has supported the impugned judgment. The

learned Counsel has pointed out that it is mandatory that the

applicant should serve a proper notice before filing a criminal

complaint under Section 138 of the Negotiable Instruments Act. The

learned Counsel has taken me through the impugned judgment and

pointed out that the learned Magistrate has rightly acquitted the

respondent no.1.

5. Upon hearing the learned Counsel and on perusal of the records

and taking note of the judgment of the Apex Court in the case of

Alavi Haji (supra), I find that the applicant has made out a case for

special leave to appeal from the impugned judgment. Hence, the

application is allowed. Special leave is granted to the applicant to

challenge the said judgment of the learned Magistrate dated

13/05/2011.

6. Application stands disposed of.

F. M. REIS, J.

NH