1 (crim wp 2741 of 2010) IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL WRIT PETITION NO.2741 OF 2010 IN C.C. NO. 2305054/SS/2008 Antarctica Investment (P) Ltd. and Ors. ...Petitioners Vs. Custom Capsules Pvt. Ltd. and Anr. ...Respondents ----- Mr.Kafil Khan for Petitioners Mrs. M.R. Tidake- APP for the State ----- CORAM: V.M. KANADE J. DATED: 12TH OCTOBER, 2010 P.C. 1. Heard the learned counsel appearing on behalf of the Petitioners. 2. The Petitioners are challenging the order of issuance of process passed by the learned Magistrate on a complaint filed by the Respondent No.1 under section 138 of the Negotiable Instruments Act. 3. It is firstly, submitted that two notices have 2 (crim wp 2741 of 2010) been issued by the Complainant. The first notice was dated 2 nd September, 2008 and the second notice is dated 23 rd September, 2008. It is submitted that the complaint was filed on 10 th November, 2008 and, therefore, the complaint is barred by law of limitation. Secondly, it is submitted that an enquiry under section 202 of the Cr.P.C. was not made and the learned Magistrate did not postpone the issuance of process and hold an enquiry particularly when the Petitioners are residing outside the jurisdiction of the Court. It is submitted that, therefore, the order of issuance of process liable to be set aside. Thirdly, it is submitted that the liability which was due and payable to the complainant was Rs.48 lacs and as of today only it is Rs.6 lacs. Reliance was placed by the learned Counsel for the Petitioners on a letter written by the Complainant dated 2 nd September, 2008 and other document viz. letter dated 22 nd July, 2008. 3 (crim wp 2741 of 2010) 4. So far as the first submission is concerned, regarding issuance of two notices, perusal of the complaint reveals that the complainant has mentioned in his complaint that upon the dishonour of the cheque, a statutory demand notice was issued on 23.9.2008. In the complaint, it is stated that the notice was sent on 24.9.2008 and it was received on 27.9 and/or upto 30.9.2008. The period is calculated from the said two dates, the complaint obviously is filed within a period of limitation. In any event, it is always open for the complainant to apply for condonation of delay in view of the amended section 142 of the N.I. Act. So far as the second submission is concerned, this Court has already held in the case of Bansilal S.Kabra vs. Global Trade Finance Ltd. & Anr., decided on 9 th July, 2010 and 29 th July, 2010 passed in Criminal Application No. 1344 of 2010 that the provisions of section 202 are directory and not mandatory after referring to various judgments of the Apex Court. So far as the third submission is 4 (crim wp 2741 of 2010) concerned, at this stage, reliance cannot be placed on the documents which are produced by the Petitioners herein since the Petitioners will have to prove the said documents during the trial. 5. Hence, there is no merits in the submission made by the learned counsel for the Petitioners. The writ petition, therefore, is dismissed. 6. It is made clear that the grounds raised by the Petitioners in this petition are kept open. The Trial Court shall decide the case after the evidence by both the parties. (V.M. KANADE J.)