IMPORTANT POINT
Complaint for offence u/s 138 of N.I. Act on basis of second default and second demand notice would be maintainable.

Mrs. Swapna Joshi, J.—The present appeal has been preferred by the original complainant against the judgment and order dated 8th July, 1999 in Case No. 103/ S/1993 passed by the learned Additional Chief Metropolitan Magistrate, IV Court, Girgaum, Mumbai thereby allowing the application filed by respondent Nos.1 to 3 / original accused Nos.1 to 3 for dismissal of the complaint under section 138 of the Negotiable Instruments Act and for their acquittal.

2. As the complainant and his counsel remained absent, Mr.Yashpal Thakur, the learned counsel pleaded the case of the complainant as Amicus Curiae.

3. I have heard the learned counsel Mr. Thakur, Mr. Millwala, the learned counsel for respondent Nos.1 to 3 and the learned APP for the respondent State.

4. I have gone through the impugned judgment and order passed by the learned Additional Chief Metropolitan Magistrate and perused the record of the case.

5. Brief facts of the case are that in all five cheques were issued by accused in favour of the complainant, including three cheques which are subject matter of the present case i.e. cheques dated 30th December, 2012 for Rs.3,30,000/, 30th January, 1993 for Rs.2,50,000/and 28th February, 1993 for Rs.2,50,000/. All the cheques were dishonoured. A statutory demand notice was issued by the complainant on 14th May, 1993 to the accused. The accused requested the complainant to redeposit the cheques dated 30th December, 2012 for Rs.3,30,000/, 30th January, 1993 for Rs.2,50,000/and 28th February, 1993 for Rs.2,50,000/. Pertinently, those cheques were also dishonoured. Hence another statutory demand notice was sent by the complainant on 28th June, 1993 to the accused. A complaint was filed against accused persons on the basis of this notice.

6. I have perused the evidence of the complainant. In his cross-examination, the complainant has admitted that he had issued notice on 14th May, 1993 which is a statutory demand in respect of the five cheques issued by the accused, including the cheques in question, after they were dishonoured. Out of those five cheques, three cheques which are in dispute were redeposited and again the same were dishonoured.

7. Mr.Thakur, the learned counsel for the complainant appointed by this Court to espouse the cause of the complainant argued that it is a pure question of law involved in this case. He submitted that the learned trial Court has proceeded to drop the proceedings at the stage of cross-examination of PW3 which is not permissible under the law. Mr.Thakur invited my attention to the provisions of Section 258 of The Code of Criminal Procedure, 1973 and submitted that the learned Magistrate has erred in disposing the complaint in this way. The second contention of Mr.Thakur is that the trial Court has acquitted the accused by relying upon the decision of the Hon’ble Supreme Court in the case of Sadanand Bhadran V/s. Madhvan Sunil Kumar, (1998) SCC 514 which was a good law at the relevant time. However, Mr. Thakur contended that now the said judgment has been overruled and he, therefore, prayed for remand of the matter back to the trial Court.

8. Per contra, Mr.Millwala, the learned counsel for the original accused argued that the learned trial Court has passed an order on an application filed by the accused to drop the proceedings. In that case, at the most the accused could have been discharged. He submitted that the complainant should have filed a revision against the said order. Mr. Millwala, the learned counsel however did not dispute that the provisions of section 258 are not applicable to the case in hand. According to the learned counsel, the learned Magistrate has rightly passed the order of acquittal of the accused and the trial Court has rightly applied the law in the case of Sadanandan Bhadran (supra).

9. Heard the learned counsel for the parties and carefully perused the record of the case. Admittedly, the learned Magistrate in the midst of the trial had entertained application filed by the acc