VIJAYSHREE VIJAY KHANORKAR Vs. LAKSHMIKANT S KAMATWAR

JUDGEMENT

(1.) THIS application is directed against the order of issuance of process dated 29-2-2008 passed by the Judicial Magistrate First Class, Sindewahi in Summary Criminal Complaint No.56/2008 under Section 138 of the Negotiable Instruments Act filed by the respondent. In fairness Mr. Bhutada, learned Advocate for the applicant stated that the applicant has deposited an amount of Rs.11224/- (Rupees Eleven Thousand Two Hundred Twenty Four Only) in this Court, which is the amount of cheque and he has no objection if the said amount is withdrawn by the respondent. In addition, Mr. Bhutada, learned Advocate on behalf of his client is ready to pay Rs.1,000/- (Rupees One Thousand Only) towards compensation to the respondent. Thus the total amount with this Court would be Rs. 12,224/- (Rupees Twelve Thousand Two Hundred Twenty Four Only).

(2.) MR. Bhutada, learned Advocate submitted that the memorandum of dishonour of cheque was received by the respondent on 28-11-2007 and in accordance with the provisions of Section 138(b) of Negotiable Instruments Act, notice of demand was required to be given within 30 days from the receipt of the said intimation. But, in the instant case, notice was prepared on 27-12-2007 by the respondent himself and he actually dispatched the same to the applicant on 1-1-2008 and thus, it was clearly beyond thirty days, which is the mandate of the said provision and thus he argued that the complaint based on such demand notice itself was not maintainable. The order of issuance of process could not have been made as the learned Magistrate did not take this into consideration before issuance of process.

(3.) IN view of above discussion, I make the following order.