ASHWINI KUMAR Vs. DILIP MEHTA

JUDGEMENT

(1.) Heard learned Counsel for the petitioners. None appears for the respondent though served. The petitioner is challenging the issuance of process by the metropolitan Magistrate, 33rd Court, Ballard Estate, bombay, in a complaint filed by the respondent under section 138 of the Negotiable Instruments Act.

(2.) Learned Counsel appearing on behalf of the petitioner has submitted that after the dishonour of the cheques, the complainant had issued two notices one was issued on 18th March, 1996 and second notice was issued in the month 8th of May. It is submitted that the complaint was filed after the second notice was served on the present applicant and as there was no compliance of the demand made by the second notice, the present complaint is filed.

(3.) Learned Counsel for the petitioners submitted that this complaint, therefore, is barred by limitation as the complaint was not filed within the statutory period which is prescribed by Section 138 read with Section 142 of the Negotiable Instruments Act. In support of the said submission, he relied on the Judgment on (Sadanandan bhadran v. Madhavan Sunil Kumar) , 1999 (5) Bom. C. R. 242 (S. C. ) : 1998 (6) S. C. C. page 514. He further submitted that during the pendency of the writ petition in this court under Section 142 of the Negotiable instruments Act and particularly the proviso was amended whereby the complainant was given an opportunity to file an application for condonation of delay which could be considered on its own merits by the Magistrate after giving hearing to the accused. He submitted that therefore, amended provisions would not apply in the present case and even if it is held that amended provision is applicable to the case which is pending since 1997, even in such a contingency, the process which was issued by the Magistrate was liable to be quashed.