BHIMRAJ DEEPCHAND SOLANKI Vs. HANSABEN P MEHTA

JUDGEMENT

(1.) THE petitioner challenges the order passed by the sessions Judge in Criminal Revision Applir cation No. 689 of 1998 on 29. 11. 1999 setting aside the order passed by the Metropolitan magistrate; 28th Court, Esplanade rejecting the discharge application filed by the accused.

(2.) THE petitioner who is the complainant had filed complaint bearing No. 282/s/1993 u/s. 138 of the Negotiable Instruments Act against respondent Nos. 1 to 4. The complainant alleged that certain cheques issued by the respondents had been dishonoured as his bankers informed him that the respondents had stopped payment of the cheques. A notice was issued by the petitioner's advocate on 1. 6. 1992 calling upon the accused to pay the amount due under the dishonoured cheques within 15 days of the receipt of the notice. It appears that although the notice sent by the registered post was returned with an endorsement 'not claimed', the notice sent Under certificate of Posting was received by the respondents. The petitioner then filed the complaint claiming that the respondents had stopped payment of Rs. 37,982/- due and payable to the petitioners.

(3.) AN application for discharge was filed by the respondents who were the partners of the firm. The main contentions raised in the discharge application were (i) that there was no averment in the complaint that the cheque was dishonoured with the remark "payment stopped by the drawer"; (ii) there is no notice issued as required under section 138 of the Negotiable Instruments Act. The petitioner replied to this application and opposed the discharge. On 1. 7. 1998, the learned Metropolitan Magistrate rejected the discharge application. Aggrieved - by this decision, Respondent No. 1 filed criminal revision application No. 689 of 1998 on 20. 11. 1999 before the Sessions Court. This revision application has been allowed. Hence, the present petition.