KOTAK MAHINDRA BANK LTD Vs. BHARAT S DAHANUKAR

JUDGEMENT

(1.) PURSUANT to the order passed on 29/9/2007 this appeal has been heard along with Criminal Application No. 2263 of 2006 filed for seeking leave to appeal under section 378 (4) of Cr. P. C. R. and P. has been perused and the appeal arises from an order of acquittal passed by the learned Metropolitan magistrate, 12th Court, Bandra against accused nos. 3 and 5 on 23/2/2006 in C. C. No. 480/ss/2005 (Old C. C. No. 316/s/1997) filed under section 138 of the Negotiable Instruments Act, 1881 (for short "the Act" ). By the said order the learned Metropolitan Magistrate was pleased to allow the complaint partly and accused nos. 1 and 2 have been convicted and sentenced under section 138 read with Section 141 of the Act. Thus the scope of the appeal is only for consideration against accused nos. 3 and 5 who have been acquitted.

(2.) SIX cheques with the following particulars were issued by the accused no. 1 -company in favour of the complainant - company : <FRM>SAURAS0_258_ALLMR(CRI)_2008.HTM</FRM> On 20/6/1997 the complainant -company presented these cheques for encashment with its Bank i. e. HDFC Bank, Khar branch, Mumbai but they were returned unpaid by the drawee Bank for the closure of the account as per the memo dated 23/6/1997. The complainant sent the statutory demand notice on 8/7/1997 and inspite of service of the same when the accused did not pay the cheque amount, the complainant - company filed the above stated complaint. As per the complainant it was initially named as Kotak Mahindra finance Co. Ltd. and subsequently it became a bank i. e. Kotak Mahindra Bank Ltd. It was in the business of giving on lease capital, equipments like machines etc. and as per the agreement dated 4/3/1994 it supplied plant and machinery to the accused no. l - company worth about Rs. one crore and on lease basis. Lease amount was agreed at Rs. 2,33,191/- and accordingly the above stated cheques were issued which could not be encashed.

(3.) ACCUSED no. l is a public limited company and seven of its Directors were initially impleaded as accused nos. 2 to 8. However accused no. 6 - Shri. Ramdas Thakkar came to be deleted as per the order passed by this Court on 7/11/1997. Accused no. 7 was deleted on 2/7/1997 and accused nos. 4 and 8 came to be deleted on 11/10/2002 by the complainant - Bank and the complaint thus survived against accused no. 1 - company and accused nos. 2, 3 and 5.