WESTERN INDIA SILK INDUSTRIES Vs. RAJENDRA DALMIA

JUDGEMENT

(1.) THE matter arises out of a complaint filed by respondent No. 1 against the petitioner and others before the Additional Chief Metropolitan Magistrate, 37th Court at Esplanade, Bombay being Criminal Case No. 120/s/1991. In the complaint filed by the 1st respondent, it is alleged that the petitioner had issued 11 cheques in favour of M/s Dipak Spinners Ltd. and those cheques were dishonoured. Notice has been sent in compliance with section 138 (c) of the Negotiable Instruments Act to make the payment within 15 days time. Even after the notice, amount has not been paid and this complaint was filed on 18th March, 1991.

(2.) THE learned Counsel for the petitioner Shri Pradip Mandhyani has inter alia contended that the complaint is vitiated by the non-compliance of section 138 (c) of the Negotiable Instruments Act. He submits that the notice sent under section 138 (c) was received by the petitioner on 4-3-1991 and complaint was filed on 18th March, 1991. So it is clear that 15 days time stipulated under section 138 (c) has not been completed and he submits that without giving notice of clear 15 days time, as envisaged under section 138 (c) of the Negotiable Instruments Act, complaint filed before the Magistrate will not be maintainable.

(3.) I have verified the acknowledgment, which is produced along with writ petition. On perusal of the same, I am satisfied that the contention of the petitioners Counsel is to be accepted. The acknowledgement shows that the notice was received by the petitioner only on 4th March, 1991 and the complaint was filed even before completing 15 days namely on 18th March, 1991. In view of this, the Magistrate without proper application of his mind has issued summons against the petitioner which is liable to be quashed. Magistrate ought to have dismissed the complaint as premature.