ARUN B. MISHRA Vs. NILESH SHAH

JUDGEMENT

(1.) This is an appeal impugning an order and judgment dated 6th May 2005 passed by the Metropolitan Magistrate 33 rd Court, Esplanade, Mumbai, acquitting the accused of offence punishable under Section 138 (Dishonour of cheque for insufficiency, etc., of funds in the account ) of the Negotiable Instruments Act , 1881 (the said Act).

(2.) Ms. Ved, counsel instructed by M/s. Kiran Jain and Company states that appellant had taken the file from the advocates way back in 2007 and the advocates had also given no objection. Ms. Ved states that when the matter was last listed on 14 th July 2017, M/s. Kiran Jain and Company also addressed a communication to appellant stating that the matter is getting listed and it will be taken up for hearing at any time. Ms. Ved states that the letter was returned undelivered with the endorsement "address not known". Copy of the said letter is taken on record and marked "X" for identification. Ms. Ved states that is the address in the cause title to which the letter was sent and that was the only address available in the records and proceedings.

(3.) I have perused the records and proceedings as well as the impugned judgment. The Trial Court has passed the order impugned on the ground that the notice given itself was bad in law. I have also considered the complaint and it is correct that in the complaint, a demand has been made for Rs.1,54,852.70 as payable. Accused had issued four cheques for Rs.50,000/-, Rs.32,000/-, Rs.22,997.99 and Rs.12,638.75, totaling to Rs.1,17,636.74. When the cheques were presented, they were dishonoured. In the affidavit of evidence, complainant has said that Rs.1,54,852.70 paise was due and payable but in the cross examination, complainant says after accused sent a reply to his notice, his advocate has mentioned in the rejoinder that total dues were Rs.2,97,705.95 paise and after deducting Rs.75,000/-, the amount due was Rs.1,54,852.70 paise. This is incorrect because the amount would be Rs.2,27,705.95 paise. Complainant further admits that certain payments were made after the cheques were dishonoured but no such details have been disclosed in the complaint.