KANAHAIYALAL AND CO Vs. RAJESH SHAMJI SOMMAYYA

JUDGEMENT

(1.) THIS application is filed under Section 482 of Cr. PC. , challenging the process issued by the learned Metropolitan Magistrate, 2nd Court, Mazgaon, bombay in Complainant Case No. 105/8/94 filed by the respondent No. 1 complaint against these petitioners. The said complaint is filed under the provision of Section 138 of the Negotiable Instruments Act as the cheque dated 27. 11. 1993 issued by the petitioner for sum of Rs. 50,000/- was dishonoured when it was presented to the Bank on 24. 12. 1993. After the said complaint was filed the process came to be issued which is under challenge in this application.

(2.) MR. Khandeparkar on behalf of the petitioners contends that the complaint has been filed mala fide and is not maintainable under Section 138 of the Negotiable instruments Act because much before the presentation of the said cheque to the Bank on 24th December, 1993, the petitioners had issued notice to the respondent No. 1 complainant dated 10. 11. 1993 i. e. before the cheque had become due on 27. 11. 1993 with a request not to present the same for genuine dispute in that behalf. According to Mr. Khandeparkar in spite of this notice they have wrongly presented the cheque and, therefore, as per the recent judgment of the Supreme Court in the case of Ms. Electronics Trade and Technology Development Corporation Ltd. such complaint is not maintainable.

(3.) MR. Mohite on behalf of respondent No. 1 has filed affidavit denying the receipt of notice by his clients. Mr. Khandeparkar has produced the xerox copy of the outward register maintained by the office of the petitioners to show that such letter, in fact not one but two letter dated 10. 11. 1993 and 15. 11. 1993 were despatched by ordinary post of the complainant.