1 WP-1947-09.sxw IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION Mhi CRIMINAL WRIT PETITION NO. 1947 OF 2009 Vijay Bendre ) Adult, Indian Inhabitant, ) Proprietor of M/s. Vijay Sales ) Corporation, residing at 32/21 B, ) Laxmi Vilas, Erandwana, ) Pune 411 004. ).. Petitioner (Orig. Accused) Versus 1. Sajjad Karim Mechant ) Adult, Indian Inhabitant, Sole ) Proprietor of M/s. Butterfly ) Corporation, carrying on ) Business at 149 H, Abbas Street) 2nd floor, Mumbai 400 009. ) 2. State of Maharashtra ) through Public Prosecutor, ) High Court, Bombay. ).. Respondent (No.1 orig.complainant) Mr. Ahay S.Khandeparkar, i/b. Khandeparkar & Associates,Advocates, for the petitioner. Shri Ashok Mishra, Advocate, for the respondent No.1. Ms. A.T. Javeri, APP, for the respondent No.2 - State. CORAM: J.H.BHATIA,J. DATE : 29th July, 2010. JUDGMENT 1. Rule. Rule returnable forthwith. Heard the learned Counsel for the 2 WP-1947-09.sxw parties. 2. To state in brief, it is case of the complainant, who is respondent no.1 in the present petition that he had sold certain goods to the present petitioner under two bills for total amount of Rs.1,82,412/-. One bill dated 7.10.2007 bearing no.4973 was for Rs. 1,52,460/-. Another bill dated 2.5.2007 was for the amount of Rs. 29,952/-. The amount was not paid in time. According to the complainant, accused-petitioner issued a cheque bearing No.502745 dated 26.3.2008 for amount of Rs.1,52,460/- drawn against Bank of India, Laxmi Road Branch, Pune. The said cheque was presented on 3.7.2008. The cheque was returned with memo dated 2.7.2008 from the drawee bank with remark "Exceeds Arrangement". After that intimation, on 10.7.2008, the complainant issued a notice to the accused by Regd. Post A.D. demanding payment. That notice was received on 14.7.2008, but payment was not made within stipulated period. Thereafter in August 2008, the complaint was filed. 3. The learned Counsel for the accused-petitioner states that on 4.8.2008, the petitioner had sent xerox copy of the Demand Draft No.080882 dated 4.8.2008 drawn on Bank of India for the amount of Rs.1,52,460/-. By the letter, the petitioner asked the accused to arrange to send/deliver original 3 WP-1947-09.sxw instrument/cheque in person at their office at Pune and to collect the demand draft. Similar notice was issued to Advocate Tushar Joshi who had issued the notice on behalf of the complainant. Inspite of service of letter dated 4.8.2008, there was no response and the complainant filed the complaint in the Court. Process was issued on 19.9.2008. According to the petitioner, on the first date, he presented demand draft before the Court, but that was not accepted. Later on, the amount was deposited on 19.6.2009 before the trial Court. It is contended that in view of these facts, no offence is made out and therefore the process needs to be quashed. 4. After hearing the parties, it appears that the cheque amount has been deposited by the petitioner before the trial Court on 19.6.2009. The petitioner has not disclosed the date on which the complaint was filed by the complainant. On perusal of the letter dated 4.8.2008, it appears that the petitioner had not send the demand draft to the complainant. He had only sent the xerox copy of the demand draft and asked him to return the original cheque and to collect the demand draft from the office of the accused at Pune. In fact, when the notice was issued by the complainant on 10.7.2010, the period of the notice was over. The accused could have offered the payment or presented the demand draft. Instead of doing that, the accused only sent the xerox copy and asked the complainant to come to the office of the accused at Pune to collect the demand draft. The complainant is situated in 4 WP-1947-09.sxw Mumbai. The expectation of the accused that he should go to Pune and collect the demand draft could not be justified. As the amount was not paid nor amount was actually offered, before filing the complaint, I find it difficult to hold that no case is made out under Sec.138. The deposit of the money by the accused in the Court later on and his offer to make payment earlier may be a subject matter for consideration at the time of trial. 5. For the aforesaid reasons, the petition stands dismissed. Rule discharged. (J.H.BHATIA,J.)