SANJAY SITARAM KHAMKAR Vs. STATE OF MAHARASHTRA

JUDGEMENT

(1.) HEARD learned Counsel for the applicant and learned APP for the State. The applicant is challenging the order of process issued by the Metropolitan Magistrate on a complaint which was filed by the respondent under Section 138 of the Negotiable Instruments Act for dishonour of cheque which was drawn by the applicant herein.

(2.) THE grounds raised by the applicant in this petition is that the process was issued without any application of mind as the complaint itself was time barred and was based on the second notice which was issued after the cheque was deposited again after first dishonour. He has relied on the judgment of the Supreme Court in the case of Sadanandan Bharadan vs. Madhava Sunil Kumar, reported in 1998 (6) SCC 514. It was submitted that the second complaint was not maintainable as the cause of action had arisen after the first dishonour of cheque and after the issuance of the first notice and therefore, the second complaint which was filed after the second notice was clearly barred by limitation as laid down under Section 138 read with Section 142 of the Negotiable Instruments Act.

(3.) HOWEVER, the fact remains that the Magistrate has issued process without considering this question and in view of the judgment of the Supreme Court in Adalat Prasad Vs. Rooplal Jindal & Ors. reported in 2004 (4) Mh.L.J. 274, the Court would not be in a position to recall its own order. In this view of the matter, I am of the view that the order of process which has been issued by the Magistrate without taking into consideration the question of limitation, will have to be quashed.