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2012 DIGILAW 10 (BOM)

Mahalaxmi Enterprises v. JWC Logistics Pvt. Ltd.

2012-01-04

M.L.TAHALIYANI

body2012
Judgment The applicants are the original accused in C.C. No.60/SS/2010 pending in the Court of Metropolitan Magistrate, 10th Court, Andheri, Mumbai. Applicant No.1 M/s Mahalaxmi Enterprises is the partnership firm. Applicant Nos.2 and 3 are the partners of the said firm. They are facing trial for the offences punishable u/s 138 r/w Section 141 of the Negotiable Instruments Act. The proceedings are sought to be quashed mainly on three grounds namely-(i) there are no specific averments regarding the role of applicant nos.2 and 3, (ii) notice was not issued to applicant no.1-firm, and (iii) the complaint was premature, in as much as it was filed before the expiry of the statutory period from the date of the statutory notice. 2. To appreciate the submissions made on behalf of the applicants, it is necessary to record few facts and dates which are relevant to the issues involved in the present application. 3. It is admitted position that applicant nos.2 and 3 are the partners of applicant no.1-Mahalxami Enterprises. It is not disputed that the applicants had entered into leave and licence agreement with respondent no.1 for the warehousing premises. It is further admitted that the leave and licence agreement was cancelled mutually and in pursuance thereof respondent no.1 had handed over possession of the premises to applicant no.1. 4. It was the case of respondent no.1 that the petitioners had issued certain cheques to respondent no.1 by way of refund of security deposit. The cheque no.669170 drawn on Punjab National Bank dated 3.11.2009 for an amount of Rs.25,00,000/-was one of such cheques. It is further alleged that the said cheque was deposited in the bank and was dishonoured. A statutory notice was issued to the applicants by respondent no.1. 5. The statutory notice was issued on 27.11.2009. It was the case of respondent no.1 before the Trial Court that in the said notice there was a mistake of one digit of cheque number. Instead of typing cheque No.669170, it was typed as 669169. Therefore, a demand notice rectifying the mistake was issued on 5.1.2010. A complaint was filed on 12.1.2010. 6. As such the first notice was issued on 27.11.2009, the notice rectifying the mistake was issued on 5.1.2010 and complaint was filed on 12.1.2010. The first notice dated 27.11.2009 was received by the applicants on 5.1.2010 and second notice was posted on 5.1.2010 under certificate of posting. A complaint was filed on 12.1.2010. 6. As such the first notice was issued on 27.11.2009, the notice rectifying the mistake was issued on 5.1.2010 and complaint was filed on 12.1.2010. The first notice dated 27.11.2009 was received by the applicants on 5.1.2010 and second notice was posted on 5.1.2010 under certificate of posting. It is contended on behalf of the applicants that respondent no.1 was required to wait for a period of 15 days from 5.1.2010 when the second notice was issued. If the complaint was filed before the expiry of the statutory period of 15 days mentioned in proviso (c) to the Section 138 of the Negotiable Instruments Act, the said complaint was not maintainable. It is noted that the original notice was received by the applicants on 5.12.2009. The complaint was filed on the basis of the original notice and not on the basis of the date on which the mistake in cheque number was rectified. It is also noted that the applicants were aware of both the cheque numbers. The cheque no.669169 was also issued to respondent no.1 by the applicants and it had been cleared from the account of applicants in the month of September 2009 itself. Therefore, the clerical mistake in the statutory notice must have struck to the applicants for obvious reasons. In any event, whether the earlier notice was statutory notice or the notice rectifying a mistake in cheque number was statutory notice will be decided during the trial on appreciation of the evidence. This Court, at this stage, will not examine this fact in issue. It obviously will be decided only after recording of evidence. 7. As far as the service of statutory notice on applicant no.1-firm is concerned, that also will be decided by the Trial Court in view of the fact that the statutory notice had been served upon the applicant nos.2 and 3 who are admittedly the partners of applicant no.1-firm. Whether service of notice on applicant nos.2 and 3 amounts to service of notice on applicant no.1-firm, will be decided by the Trial Court in the first instance. 8. It is also submitted that no averments have been made in the complaint as to the role of applicant nos.2 and 3 in day to day business of applicant no.1-firm. Whether service of notice on applicant nos.2 and 3 amounts to service of notice on applicant no.1-firm, will be decided by the Trial Court in the first instance. 8. It is also submitted that no averments have been made in the complaint as to the role of applicant nos.2 and 3 in day to day business of applicant no.1-firm. In this regard, I have noted that respondent no.1 has clearly stated in paragraph 3 of the complaint that applicant nos.2 and 3 are the partners of applicant no.1-firm and that they are responsible to the day to day business of the firm. Applicant no.2 is the signatory of the dishonoured cheque. As such sufficient averments have been made in the complaint to make out a case against all the applicants. There are certain facts which are disputed by the applicants. The disputes over those facts will be resolved during the course of trial and not in the present proceedings. I do not find any substance in the application. 9. Hence, I pass the following order: Criminal Application stands dismissed. Interim order, if any, stands vacated.