Bombay High Court
Harish Prakash Changade vs Anand Trading Co & Anr on 28 November, 2016
Bench: V.K. Jadhav
1 CRI APPLN NO.182.2005.odt
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
CRIMINAL APPLICATION NO. 182 OF 2005
Shri. Harish S/o Prakash Changade,
Age. 30 years, Occ. Doctor,
R/o. Jyoti Saree Centre, Tilak Path,
Aurangabad. ...APPLICANT
Versus
1. Anand Trading Company,
Through its Proprietor,
Shri. Nanakran Hazarimal Paraswani,
Age. 58 years, Occ. Business,
R/o. Tilakpath, Aurangabad.
2. The State of Maharashtra. ...RESPONDENTS
...
Advocate for Applicant : Mr C D Fernandes h/f Mr. A N
Kakade
Advocate for Respondent No. 1 : Mr R F Totala
Advocate for Respondent/State : Mr. S P Tiwari
...
CORAM : V.K. JADHAV, J.
Dated: November 28, 2016
...
PER COURT :-
1. Being aggrieved by the judgment and order passed
by the 3rd Additional Sessions Judge, Aurangabad dated
8.12.2004 in criminal revision no.255/2003 original
accused has preferred this application.
2 CRI APPLN NO.182.2005.odt
2. Brief facts, giving rise to the present application
are as follows :-
The applicants an accused in SCC No.5691/2002
filed by respondent no.1 under section 138 of the
Negotiable instruments Act. After recording verification
statement, the learned Magistrate has considered the
facts of the case and issued process against the
applicant-accused for the offence punishable u/s 138 of
the Negotiable Instrument Act. In response to the said
process, the applicant-accused appeared before the
learned Magistrate and filed an application Exh.17 for
recalling of the said process. Respondent-original
complainant has strongly resisted the said application,
however, the learned Magistrate by order dated
12.9.2003 below Exh.17 allowed the application and
thereby recalled the process. Being aggrieved by the
same, respondent-original complainant has approached
the Sessions Court, at Aurangabad and the learned 3rd
Additional Sessions Judge, Aurangabad by its impugned
judgment and order dated 8.12.2004 allowed the
revision petition and thereby quashed and set aside the
3 CRI APPLN NO.182.2005.odt
order passed by the Magistrate below Exh.17 dated
12.9.2003 in SCC No.5691/2002 and further directed
the Magistrate to restore the file on its original number
and proceed with the same in accordance with law.
Being aggrieved by the same, the applicant-accused has
filed present criminal application.
3. Learned counsel for the applicant submits that the
applicant-accused has no concern with M/s Jyoti Saree
Center and his parents and two brothers formed the
partnership and the partnership firm run said
business. Learned counsel submits that the applicant
accused is Doctor by profession and he had no concern
with the said partnership firm. Furthermore, the
applicant accused has not issued the cheque in dispute
nor signed the said cheque as alleged in the complaint.
Learned counsel submits that the applicant-accused
has produced before the trial court, original partnership
deed and the deed placed on record unmistakenly point
out that the applicant accused is not the partner of the
said firm. Furthermore, the learned Magistrate has
compared the signature on the cheque and other two
4 CRI APPLN NO.182.2005.odt
signatures of the applicant-accused on record and
further observed that signatures are different one. The
learned Magistrate has therefore rightly allowed the
application at Exh.17 and called back the process issued
against the applicant-accused. However, the learned
Additional Sessions Judge without applying mind
erroneously quashed and set aside the order passed by
the Magistrate and allowed the criminal revision in view
of the judgment of Adalat Prasad Vs. Rooplal Jindal and
Others reported in 2004 AIR SCW 5174 case. Learned
counsel submits that therefore, the order passed by the
Magistrate issuing process against accused under
section 138 of the Negotiable Instrument Act is liable to
be quashed and set aside.
4. Learned counsel for respondent-original
complainant submits that probable defence of the
applicant-accused cannot be considered at the time of
issuance of process. Furthermore, the document of
partnership deed which is produced on record is highly
suspicious document and partnership deed as alleged
by the applicant accused is not registered one. Learned
5 CRI APPLN NO.182.2005.odt
counsel submits that, applicant accused is not doing his
medical practice nor he is medical practitioner by
profession. on the contrary, he is sitting on the counter
of the shop of Ms Jyoti Saree Center and he is looking
after day to day business of said Saree Center. Learned
counsel submits that the applicant accused has issued
a cheque and the cheque bears his signature. Learned
counsel submits that learned magistrate has rightly
issued process against the accused for the offence
punishable under section 138 of Negotiable Instrument
Act. Though Magistrate has recalled the process
passing an order below Exh.17, in view of the
authoritative pronouncement of the Supreme Court in
Adalat Prasad's case (supra) the learned Additional
Sessions Judge has quashed and set aside the order
passed by the Magistrate in the aforesaid criminal
revision. In view of this, no interference is required.
Criminal Application is thus liable to be quashed and
set aside.
5. It is well settled that probable defence of the
applicant-accused cannot be considered at the time of
6 CRI APPLN NO.182.2005.odt
issuance of process. In the instant case, the document
in the form of partnership deed which is placed on
record is a document of unregistered partnership deed
and learned counsel for respondent-original
complainant has vehemently submitted that said
document is highly suspicious document and it is after
thought creation. So far as other contentions raised
such as signature on the disputed cheque etc. are
concerned, that can be seen and examined at the time
of full fledge trial of the case.
6. In view of the above, criminal application cannot
be entertained. The learned Magistrate has rightly
passed the order of issuance of process against the
applicant accused under section 138 of the Negotiable
Instrument Act by considering the allegations made in
the complaint and on the basis of the verification
statement of the complainant and relevant documents
attached to the complaint. No interference is required.
Hence, following order.
7 CRI APPLN NO.182.2005.odt
O R D E R
I. Criminal Application is hereby dismissed.
II. Rule discharged.
( V.K. JADHAV, J. )
...
aaa/-
