M/S Esskay Auto And ANR v. M/S Mahindra And Mahindra Ltd And ANR

1 of 2 39.APL.678.2022.doc

IN THE HIGH COURT OF JUDICATURE AT BOMBAY

CRIMINAL APPELLATE JURISDICTION CRIMINAL APPLICATION NO.678 OF 2022 M.s.Esskay Auto and another Applicants versus M/s.Mahindra and Mahindra Ltd and another Respondents Mr.Satyavrat Joshi, Advocate for applicants.

Mr.M.G.Patil, APP, for State.

Mr.Prasad Borkar, Akshay Vanbi i/by MLS Vani & Associates, Advocates for respondent no.1.

CORAM :

PRAKASH D. NAIK, J.

DATE :

14th September 2022 PC :

1.

The applicants are facing prosecution u/s.138 of Negotiable Instruments Act. The case is pending before concerned Court. Process was issued on 8th September 2017.

2.

Learned advocate for applicants submitted that complaint is not maintainable in law. Cheques were dishonoured on 14th October 2016 and memo of dishonour of cheques was received by complainant on the same day. The demand notice was dispatched on 15th November 2016. It is submitted that notice was forwarded beyond statutory period prescribed for forwarding notice after the cheques were dishonoured. Delay in issuing notice cannot be condoned. There is no such provision in law. Even in the affidavit-in-evidence adduced by the complainant, it can be seen that notice was dispatched on 15th November 2016 which is beyond limitation of for forwarding notice. Reliance is placed on the MANISH SURESH THATTE by MANISH SURESH THATTE Date: 2022.09.16 11:11:57 +0530 decision in case of Sivakumar Vs. Natrajan1.

3.

Learned counsel for respondent-complainant, however, submits (2009)13-SCC-623

2 of 2 39.APL.678.2022.doc that order of process was issued in September-2016. Thereafter evidence of complainant was adduced by way of affidavit-in-evidence. The accused did not cross-examine the complainant. Hence the Magistrate passed order of no cross on 10th February 2022. Thereafter Trial Court recorded statement u/s.313 of Cr.P.C of accused. The accused thereafter preferred application for recalling the order dated 10th February 2022 u/s.311 of Cr.P.C for the purpose of cross examining the complainant. The said application has been allowed by order dated 28th July 2020. It is submitted that in the circumstances this Court may not entertain this petition for setting aside order of process which was issued in the year 2017. Reliance is placed on the decision of Supreme Court in the case of John Thomas Vs. Dr.K.Jagadeesan delivered in Criminal Appeal No.688 of 2001 (arising out of SLP [Cri.] No.1875 of 2001, dated 12th July 2001.

4.

It is pertinent to note that complaint is pending before the Court from 2016. Process was issued on 8th September 2017. Thereafter evidence was adduced. The complainant was not cross- examined. Hence Court was constrained to pass order of no cross. It continued for long period of time. Hence statement u/s.313 of accused was recorded and thereafter Magistrate has allowed the application for recalling the complainant for cross examination. Considering the fact that case is at almost final stage, it would not be appropriate to interfere in the proceedings. Hence, application is dismissed. The issues urged in this petition can be adjudicated in trial.

(PRAKASH D. NAIK, J.) MST