DESAI TRADERS Vs. MAHALAXMI TYRES AND AUTO SERVICES

JUDGEMENT

(1.) Petitioner is the original complainant and the respondent No. 1 is the partnership firm and respondent Nos. 2 and 3 are the partners of respondent No. 1.

(2.) Petitioner is challenging the order passed by the Sessions Court in criminal Appeal No. 90 of 2001 whereby the sessions Court partly allowed the appeal, set aside the order of conviction passed by the judicial Magistrate, First Class in Summary criminal Case No. 16441 of 1997 and directed the Judicial Magistrate to retry the case afresh.

(3.) It is the case of the petitioner that the petitioner had supplied rubber to the respondent No. 1 and four cheques were issued by the respondent No. 1 towards the price of the rubber sold to them. The cheques, however, were dishonoured with the remark "insufficient funds". A demand notice was issued and in spite of service of demand notice, respondent No. 1 failed to pay the dues to the petitioner and a complaint under section 138 of the Negotiable Instruments Act was filed. The Trial Court after perusing the evidence on record convicted the respondent nos. 2 and 3 for an offence under section 138. Against the said order, respondent Nos. 1 and 3 preferred an appeal before the Sessions judge, Kolhapur. The Lower Appellate Court came to the conclusion that the Trial Court had committed a serious error while recording the statement of the accused under section 313 of the Criminal Procedure Code and, therefore, serious injustice was caused to the respondents. The Lower Appellate Court, therefore, remanded the matter back to the trial Court for retrial.