Bombay High Court
Dr. Rajendra S/O Gopikisan ... vs Shrirang S/O Ramratan Chandak And ... on 25 April, 2016
Bench: Z.A. Haq
Judgment 1 wp772.13.odt
IN THE HIGH COURT OF JUDICATURE AT BOMBAY,
NAGPUR BENCH, NAGPUR.
CRIMINAL WRIT PETITION NO.772 OF 2013
Dr. Rajendra S/o. Gopikisan Kalantri,
Aged about 53 years, Occu.: Business
as Proprietor of M/s.Raj Depositors,
R/o. Rajapeth Chowk, Amravati, Tahsil
and District : Amravati. ig .... PETITIONER.
// VERSUS //
1) Shri Takhatmal Shrivallabh Brothers
Partnership firm through its partners
1) Rangnath Shrirang Chandak,
2) Sharang Shrirang Chandak,
3) Bajrang Shrirang Chandak
Priprietorship Firm R/o. Dhanraj Lane,
Amravati, Tq. & Dist. Amravati.
2. The State of Maharashtra,
P.S.O., P.S. City Kotwali, Amravati.
.... RESPONDENTS
.
______________________________________________________________
Shri Praveen Agrawal, Advocate for Petitioner.
Shri J.B.Kasat, Advocate for Respondent Nos.1 (1 to 3).
Shri N.B.Jawade, A.P.P. for Respondent No.2.
______________________________________________________________
CORAM : Z.A.HAQ, J.
DATED : APRIL 25, 2016.
ORAL JUDGMENT :
Judgment 2 wp772.13.odt
1. Heard learned advocates for the respective parties.
2. RULE. Rule made returnable forthwith.
3. The respondent No.1-Takhatmal Shrivallabh Brothers firm
filed Criminal Complaint Case No. 4291/2010 praying that the accused
be tried and convicted for the offences punishable under Section 138 of
the Negotiable Instruments Act, 1881 and Section 420 of the Indian
Penal Code.
4. After verification of the complainant and examining the
complaint and the documents on record, the learned Magistrate passed
order on 15th June, 2011 directing issuance of process against the
petitioner-accused for the offence punishable under Section 138 of the
Negotiable Instruments Act, 1881.
The petitioner, being aggrieved by the above order filed
Criminal Revision No.120 of 2011 before the Sessions Court which is
dismissed by the impugned order.
The petitioner, being aggrieved in the matter, has filed this
writ petition.
Judgment 3 wp772.13.odt
5. I have heard the learned advocates for the respective
parties and have examined the documents placed on the record of the
petition.
The learned Magistrate has observed that prima-facie it
appears that the cheque is issued by the accused to the complainant,
the cheque is dishonoured, the complainant had given notice to the
accused and the complaint is filed within limitation. After being
satisfied that the ingredients necessary for constituting the offence
punishable under Section 138 of the Negotiable Instruments Act, 1881
prima-facie exist, the order came to be passed on 15th June, 2011
directing issuance of process against the accused for the offence
punishable under Section 138 of the Negotiable Instruments Act.
6. In the revision application, the accused contended that
prior to the issuance of cheque for Rs.7,00,000/- there were some
settlements between the parties which are relevant and are not
considered by the learned Magistrate while passing the order. It was
contended that the cheque was not issued for satisfying the legally
enforceable debt, but it was issued on behalf of Sharma Brothers and to
substantiate this, the complainant had not brought on record all the
relevant facts. It was contended that the complaint was not
Judgment 4 wp772.13.odt
maintainable as Sharma brothers are not impleaded as parties. It was
contended that the cheque was presented after six months and
therefore, the complaint filed by the respondent No.1 cannot be tried.
7. The learned Additional Sessions Judge has succinctly dealt
with the relevant aspects and has recorded that the cheque is dated
29th September, 2010, the memo sent by the Bank shows that the
cheque was returned to the complainant on 29th September, 2010 and
it cannot be said that the cheque was presented after six months. The
learned Additional Sessions Judge has rightly observed that the defence
raised by the accused by the averments in the memorandum of revision
filed before the Sessions Court were required to be considered by the
Magistrate after conducting the trial and recording the evidence.
8. The learned advocate for the petitioner has relied on the
judgment given in the case of Harshendra Kumar D. Rebatilata Koley,
reported in (2011) 3 SCC 351 and has submitted that the learned
Additional Sessions Judge has failed to consider that if the petitioner
succeeds in proving that the accusations made in the complaint and
the documents relied upon by the complainant do not make out any
offence against the petitioner and if the petitioner succeeds in proving
Judgment 5 wp772.13.odt
on the basis of the documents placed on record that the offence, as
alleged by the complainant, is not made out, the order passed by the
learned Magistrate directing issuance of process against the petitioner
is required to be quashed.
9. The submissions made on behalf of the petitioner-accused
are misdirected. I find that the defence raised by the petitioner will
have to be considered only after giving proper opportunity to the
parties to substantiate their contentions. The considerations of the
learned Magistrate while directing the issuance of process against the
petitioner and the reasons recorded by the learned Additional Sessions
Judge while dismissing the revision application filed by the petitioner
are proper and it cannot be said that the impugned orders suffer from
any patent illegality or perversity which necessitates interference by
this Court in the extraordinary writ jurisdiction.
The petition is dismissed. In the circumstances, the
parties to bear their own costs.
JUDGE
RRaut..
