COTEX Vs. STATE OF MAHARASHTRA

JUDGEMENT

(1.) I have heard detailed submissions made by the learned Counsel appearing for the applicant. This is an application for grant of special leave to prefer an appeal under sub-section (4) of section 378 of the Code of Criminal Procedure, 1973. The applicant is the complainant in a complaint filed under section 138 of the Negotiable Instruments Act, 1881 (hereinafter referred to as "the said Act of 1881"). By the impugned order the learned Magistrate has acquitted the second respondent (accused).

(2.) It will be necessary to refer to the facts of the case in brief. According to the case of the applicant, the second respondent is the proprietor of M/s. M.M. Knits Wears. As per the orders placed by the second respondent, the applicant sold and delivered cloth material to the second respondent having total value ofRs. 14,77,717/-. Four cheques were issued by the second respondent for payment of the price of the goods sold. The said cheques were dishonoured and communication of dishonour was received by the applicant on 30th December, 2005. A notice of demand was issued on 30th December, 2005. The notice was received and was replied by letter dated 13th January 2006. As the demand was not complied with, the present complaint was filed.

(3.) A perusal of the impugned order passed by the learned Magistrate shows that the prior to the dishonour of the aforesaid cheques on the basis of which notice was issued on 30th December 2005, the said cheques were deposited by the applicant and were dishonoured. On the basis of the dishonoured cheques, earlier a communication at Exhibit-22 was issued by the applicant. By the said communication the second respondent was called upon to issue a single demand draft in the sum of Rs. 14,77,717=50 ps. which is the amount payable under the four cheques. The said communication at Exhibit-22 was made by E-mail. The learned Judge held that the said communication at Exhibit-22 was a notice of demand as contemplated by Clause (b) of proviso to section 138 of the said Act of 1988. The said communication at Exhibit P-22 is dated 9th November, 2000. The learned Judge relied upon the decision of the Apex Court in the case of Krishna Exports and others Vs. Raju Das), 2006 1 SCC(Cri) 350, and held that the complaint based on the second dishonour and second demand made on the basis of the second dishonour cannot be entertained. Therefore, he has passed an order of acquittal.