2011 (3) TMI 1814

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.... J. 1. Heard the learned Counsel for the applicant. 2. The Appellant, by this application seeks leave to prefer appeal against the order of acquittal for the offence under Section 438 of Negotiable Instruments Act in Case No. 538/SS/05 passed by the learned Special Metropolitan Magistrate, Mumbai. According to the complainant, the accused/Respondent had issued two cheques of Rs. 9 lakh each ....

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....ming that sufficient funds were there and still the cheques were dishonoured because of the attachment of the said account by the Crime Branch, the accused should have made the payment, when the statutory notice was served on him. As he failed to make payment within the stipulated period after service of statutory notice, he is liable to be held guilty under Section 138 of Negotiable Instruments A....

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....awer of the cheque to make payment within 15 days from the service of the notice. From the language of Section 138, it is clear that only if the cheque is dishonoured for want of sufficient funds sufficient arrangement made for payment, the offence under Section 138 could be committed, subject to other conditions being satisfied. If there were sufficient funds in the account against which the cheq....

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....ase, no evidence is produced to show that in the account of the accused sufficient funds were not available to clear the cheques nor there is any evidence that the accused had closed the account or that he had given any stop payment notice and because of his own act, the cheque could not be cleared. In the present case, the Crime Branch, which is an authority under the State, had issued directions....