MUKESH PRAVINCHANDRA SHAH Vs. ROOPLAL C JAIN

JUDGEMENT

(1.) LEARNED Advocate Mr. Mali for Respondents No.1 & 2 stated that copy of the Appeal Memo and other documents are not served on him. Learned Advocate for the Applicant complied the same today. On this it was decided by consent of both the parties to hear the arguments and to dispose off present leave Petition. As such rival arguments are heard at length.

(2.) IT is the leave petition preferred by the Applicant challenging the order of 28th Court, Esplanade, Mumbai, dated 29.09.2000. By the said order both the Respondents No.1 & 2- original Accused were acquitted of the offence punishable u/s 138 of the Negotiable Instruments Act. This is the Judgment and order which is challenged.

(3.) IT must be mentioned that admittedly prior to depositing the said cheque of Rs.2 lacs allegedly given by Accused No.2, it was to the knowledge of the Complainant that the concerned account in the name of Accused No.1 as a sole proprietor with concerned bank, from which the said cheuqe was drawn, was already closed somewhere in March, 2003 and it was made known to the complainant by notice dated 04.06.2004, addressed on behalf of Respondents ' Accused No.1. In fact it is curious to note that this is the notice which discloses the case of the Accused as to under what circumstances such dishonoured cheques came to be given to the complainant. Such notice was answered by the complaint through his Advocate by letter dated 21.06.2004 mentioning his own case as narrated in the original complaint and it is also an admitted position that after knowing the stand of the Accused persons and also very well knowing that the account under which such cheque was given was already closed down, complainant put the said cheuqe in his bank for realisation and consequently it was dishonoured, with the endorsement as 'account closed'. In the result the demand notice dated 23.06.2004 came to be issued to both the Accused/ Respondents. Trial court had also dealt with this factual position and considering the effect of earlier two circumstances came to the conclusion as to failure of the complainant to establish his own case and as to any existence of legally enforceable liability and consequently dismissed the complaint resulting in acquittal of the Respondent.