ISHITA RAKESH SHAH Vs. NITIN BALKISHAN BIHANI

JUDGEMENT

(1.) THE applicant-orig.complainant has filed this application for leave to file appeal against the judgment and order dated 24th June, 2005 passed by the learned Metropolitan Magistrate, 21st Court, Bandra, Mumbai in C.C.No.317/S/2003. By the said judgment and order, the learned Magistrate acquitted respondent No.1-orig. accused of the offence under Section of 138 of N.I.Act.

(2.) THE case of the complainant is that an order was placed with the complainant by the accused. In respect of the said order, she received the cheque in question. The cheque was dishonoured, hence complaint came to be filed.

(3.) THE case of the complainant is that the cheque came to be dishonoured and the memo from the bank regarding dishonour of cheque was received by her on 26.6.2003. Hence, notice came to be sent to the accused. However, thereafter the complainant realized that the notice was wrongly dated 10th June, 2003 whereas it should have been dated 30th June, 2003. Hence a corrigendum letter dated 9th July, 2003 came to be sent stating therein that the date of the first notice be read as 30th June, 2003. Thereafter another notice came to be issued by the complainant dated 21st July, 2003. From the evidence on record, it is seen that the complainant has failed to prove the notice dated 21st July, 2003. The learned Magistrate held that the complaint was filed beyond the period of limitation and hence he acquitted the respondent-accused. According to the learned Magistrate the complaint ought to have been filed on 28th August, 2003, however, the complaint came to be filed on 6th September, 2003 which is beyond limitation. No prayer was made for any condonation of delay.