Ndm 1 appl.2349.03.sxw IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL APPLICATION NO. 2349 OF 2003 Mrs. B. Chandra and anr. ... APPLICANTS Vs. M/s. V. Krishna and Company and anr. ... RESPONDENTS -------------- Mr. Ranjeet Patil, Advocate i/b Prashant G. Badole for the Applicants. Mr. A.S.Khandeparkar, Advocate i/b Warert and Warert for Respondent No.1. Mrs. A.A. Mane, APP for State. -------------- CORAM : V.R. KINGAONKAR, J. DATE : 23 rd September, 2009. P.C. 1 Heard. 2 Mr. Ranjeet Patil holding for Prashant G. Badole seeks adjournment on the ground of certain difficulties of the latter. The request is rejected in as much as the application is quite old one and the controversy involved is short. The application is filed for quashing of the Ndm 2 appl.2349.03.sxw proceedings of criminal case instituted by the Respondent No.1 for offence punishable under Section 138 read with 142 of the Negotiable Instruments Act. 3 The respondent no.1 alleged that the applicant No.1 is sole proprietor of the applicant No.2, which is a proprietor firm. The respondent No.1 alleged that certain goods called “Walk in Cooler” were sold to the applicants. The price of the goods was unpaid. The applicants neglected to pay the said amount of Rs.3,95,000/-. On account of repeated demands, the applicants issued two cheques of Rs. 1,00,000/- each on 14 th August, 1996 and 22 nd August, 1996, drawn on State Bank of Travancore, Mulund (East), Mumbai. Both the cheques were dishonoured when presented to the bank. The respondent No.1 further alleged that the notice dated 09 th September, 1996 was issued and the applicants were called upon to pay the amount. However, that demand was not fulfilled. Hence the prosecution. 4 The applicants challenge the criminal proceedings on the ground that the demand notice was not in keeping with the required Ndm 3 appl.2349.03.sxw provisions and there was non-compliance of the requirements of Section 138 of the Negotiable Instruments Act. The applicants further alleged that the amount of Rs. 2,00,000/- was not the legally payable debt. 5 Mr. A.S.Khandeparkar for Respondent No.1 submits that the notice served on the applicants is clearly indicative of the due compliance of the Section 138 of the Negotiable Instruments Act. He pin pointed that though the amount of Rs.2,95,000/- was demanded alongwith interest at the rate of 24% per annum from 16 th February, 1996, yet such demand was in accordance with the prevailing custom and usage in the business. He pointed out that the last sentence of the notice reveals that the applicants were informed to treat the notice as issued under Section 138 of the Negotiable Instruments Act for dishonour of the cheques. 6 Before I consider the tenor of the demand notice dated 09 th September, 1996, it is pertinent to note that the fact whether amount of Rs.2,00,000/- shown under the cheques was due against the applicants is subject matter of the proof. The jurisdiction available under Section 482of the Criminal Procedure Code is somewhat extraordinary Ndm 4 appl.2349.03.sxw jurisdiction, which may be invoked in rather special circumstances. Unless there is material to indicate total absence of criminal liability, the process cannot be quashed. The absence of criminal liability must appear on taking horizontal view of the matter. In other words, it is only where no further examination of documents or analysis of the evidence is required, that the order regarding issuance of process may be interfered with to meet the end of the justice. 7 In the present case, the applications involves disputed questions of facts. The notice dated 09 th September, 1996 (Exhibit – B) clearly shows that the applicants were called upon to pay the entire amount, which is inclusive of the amounts shown under the two cheques and lastly, it was informed to them that the notice may be treated as one under Section 138 of the Negotiable Instruments Act. The notice further shows that the amount was demanded as outstanding balance which was sought to be paid within 15 days from the receipt of the notice. Therefore, it prima facie appears that the necessary requirements of the demand notice contemplated under Section 138 of the Negotiable Ndm 5 appl.2349.03.sxw Instruments Act have been fulfilled. In any case, such a question cannot be finally adjudicated unless parties would go to the trial. There is no particular form of demand notice as envisaged under Section 138 of the Negotiable Instruments Act. Under these circumstances, the application appears to be without merit. 8 In the result, the application is dismissed. However, it is made clear that the observations made in this order be not considered by the trial Court in any manner. The trial Court to expedite the final hearing. [ V.R. KINGAONKAR, J ]