JUDGMENT :

1. The present appeal has been preferred under section 378(4) of the Code of Criminal Procedure, 1973 (for short ‘Cr.PC’) by the appellant challenging the judgment and order passed by the learned 3rd Judicial Magistrate, Junagadh in Criminal Case No.1948 of 1999 passed on 13.10.2003 acquitting the accused for the offence under section 138 of the Negotiable Instruments Act (for short ‘N.I. Act).

2. The complainant’s case before the learned trial Court Judge was that the present private respondent had issued two cheques of Rs.50,000/- dated 03.04.1999 and 05.04.1999 bearing no.43340 and 45798 drawn on the account maintained by the private respondent in Veraval Mercantile Cooperative Bank Ltd., Junagadh Branch. The complainant deposited the cheque in her account maintained with the Junagadh District Cooperative Bank, and it is stated that on being sent for realization, the same were dishonoured because of insufficient fund. The complainant, therefore, issued a statutory notice, but it is stated that on receipt of the notice, the accused failed to pay, and neglected, to give any reply and therefore Criminal Case No.1948 of 1999 was filed.

3. Mr. R.A. Mishra learned advocate for the appellant submitted that being aggrieved by the judgment and order in Criminal Case No.1948 acquitting the accused by giving benefit of doubt, the appellant preferred Criminal Revision Application No.628 of 2003, which came to be dismissed vide order dated 08.07.2005 on the ground of availing remedy under Cr.PC of filing of appeal and thus, leave to appeal was filed which came to be granted and therefore, the present appeal.

4. Mr. Mishra submitted that the order of the trial Court Judge acquitting the accused is illegal, erroneous and against the object of the N.I. Act. He submitted that the learned trial Court Judge has rejected the complaint only observing that the statutory notice under section 138 of N.I. Act was not served on the accused. By referring to the observations of the learned trial Court Judge, Mr. Mishra submitted that, the legal notice was served through R.P.A.D. and even by U.P.C. and the postal window slip was also produced to substantiate the fact that legal notice was issued to the accused through post.

4.1 Mr. Mishra submitted that the learned trial Court Judge failed to appreciate that the summons of the complaint in compliance of the order of the Court was served on the very same address, where the legal notice was issued, and further as the accused failed to remain present during the trial, a warrant was issued and the statement of the wife at the same address of the accused was recorded by the police. He submitted that a false evidence has been created through the brother of the accused to bring on record that, at the relevant time, when the notice was served, he was staying at their another house at ‘Sangadiya Bazar’, and, while when the legal notice was issued, he was not staying at ‘Sindhi Society’, Gandhigram.

4.2 Mr. Mishra further submitted that, the learned trial Court Judge should have disbelieved the witness of the accused, where there was nothing on record that the accused had urged before the Court after service of summons to pay the money within 15 days of receipt of summons of the Court. Mr. Mishra submitted that the complainant had urged in the complaint that the notice was sent through Registered Post A.D. and the accused had not accepted the same. While the notice sent under U.P.C. was received by the accused.

4.3 Mr. Mishra submitted that the verification on the complaint was taken on 04.05.1999 by the learned Chief Judicial Magistrate, Junagadh and the process of summons was issued making it returnable on 04.06.1999 and vide exhibit-11, on 03.02.2000, the accused had prayed for time, which came to be granted; and further exemption application was granted on 01.03.2000, but the learned Judge rejected the application and issued arrest warrant against the accused, which had been issued on the very same addre