PRASEN P NAITHANI Vs. VINOD S THAKKAR

JUDGEMENT

(1.) THE submissions of the learned counsel appearing for the parties were heard yesterday. By this appeal against acquittal the appellant (original complainant) has taken an exception to the judgment and order dated 24th June 1996 by which the 1st and 2nd respondents herein were acquitted of the offence punishable under section 138 read with section 141 of the Negotiable Instruments Act, 1881 (hereinafter referred to as the said Act).

(2.) THE 1st respondent is the 1st accused and the 2nd respondent is the 8th accused. The case of the appellant, is that the accused nos.1 to 7 were the Directors of the accused no.8 company. According to the appellant the accused no.8 (2nd respondent) had placed an order with the company of the appellant for supply of certain goods. According to the appellant the total price of the goods was Rs.07,50,000/-. According to the case of the appellant, towards the payment of the said amount, the 2nd respondent issued a cheque dated 14th June 1991 in the sum of Rs.06,88,520/- drawn in favour of the company of the appellant. The bankers of the appellant returned the said cheque alongwith memorandum dated 15th July 1991 in which it was stated that the cheque has been dishonoured for the reason "Funds expected. Present again". Accordingly, the said cheque was again presented by the appellant. Alongwith the memorandum dated 25th July 1991 the said cheque was returned with the remark "Funds insufficient". The appellant issued notice dated 05th August 1991 to the 2nd respondent calling upon the 2nd respondent to pay the amount covered by the cheque. The 2nd respondent replied to the said notice by its reply dated 23rd August 1991 addressed to the advocate for the appellant. In the said reply it was contended that the 2nd respondent was facing financial crisis and it was not possible for the 2nd respondent to pay the entire amount within a period of 15 days from the receipt of the notice. However, the 2nd respondent assured the appellant to make endeavour to pay the amount on or before 20th September 1991.

(3.) THE learned counsel appearing for the 1st and 2nd respondents submitted that the complaint was not maintainable in as much as the cheque in question was earlier dishonoured and notice dated 05th August 1991 was issued by the appellant on the basis of the first dishonour. He submitted that on the basis of the said notice, the appellant did not file any complaint and the present complaint is based on second notice which was issued after dishonour of the cheque on its redeposit. He submitted that in view of this admitted position the 1st and 2nd respondents cannot be convicted.