Nandkumar Vishwanath Gadam vs The State Of Mah And Anr
2016 Latest Caselaw 5267 Bom

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                   IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                              BENCH AT AURANGABAD




                                                      
                         CRIMINAL WRIT PETITION NO. 38 OF 2007



     Nandkumar s/o Vishwanath Gadam,




                                                     
     Age 44 years, Occ. Business
     R/o. Majalgaon, Tq. Majalgaon
     District Beed                                             ...Petitioner

              versus




                                          
     1.       The State of Maharashtra
                             
              (Copy to be served on P.P.
              High Court of Bombay,
              Bench at Aurangabad)
                            
     2.       Shivshakti Co-op. Sugar factory
              Ltd. Tandalwadi, Tq. Washi
              District Osmanabad
              Through Sanjivan Trimbakrao Kukade
              Age 37 years, Occ. Service,
      


              R/o. Washi, Tq. Washi,
              district Osmanabad                               ...Respondents
   



                                             ...
                    Advocate for Petitioner : Mr. Shrikishan S Shinde
                        APP for Respondent No.1: Mr. A.R. Kale





                   Advocate for Respondent No.2 : Mr. S.B. Choudhari
                                            .....

                                                 CORAM : V. K. JADHAV, J.

DATED : 15th SEPTEMBER, 2016

ORAL JUDGMENT:-

1. Being aggrieved by the order dated 24.8.2004, passed by the

learned Judicial Magistrate, First Class, Bhoom below Exh.1 in

S.C.C. No. 586 of 2004, thereby issuing process against the

petitioner under Section 138 of Negotiable Instruments Act and the

order dated 14.12.2006 passed by 2nd Adhoc Additional Sessions

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Judge, Osmanabad, in criminal revision application No. 144 of 2004,

the petitioner original accused has filed present criminal writ petition.

2. Brief facts giving rise to the present writ petition are as follows:-

a) Respondent No.2 original complainant had filed a

complaint before the J.M.F.C. Bhoom alleging therein that the

cheque issued by the petitioner original accused for an amount

of Rs.3,18,368.12 drawn on Osmanabad Janta Sahakari Bank

Limited, Osmanabad Branch Washi, came to be dishonoured.

Respondent complainant had issued notice to the petitioner

accused. Thereafter, the respondent filed complaint before the

Magistrate as soon as the cause of action accrued in the case.

b) It has also alleged in the complaint that the respondent-

sugar factory entered into an agreement with the brother of the

present petitioner for carting of sugarcane in motor vehicles and

accordingly brother of petitioner obtained advance amount from

the respondent-sugar factory to the tune of Rs.3,75,000/- for the

crushing season 2002-03. The petitioner original accused

stood as guarantor to the said transaction and thereafter an

amount of Rs.3,18,368.12 found recoverable from the brother of

petitioner and thus, the present petitioner has issued cheque for

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the said amount. Since the said cheque was dishonoured when

it was presented by the respondent-sugar factory, the complaint

came to be filed before the court under Section 138 of

Negotiable Instruments Act, 1881.

c) On the basis of these allegations, after recording

verification statement of representative of complainant-sugar

factory, learned Magistrate, by order dated 24.8.2004 issued

process against the petitioner accused for the offence

punishable under Section 138 of Negotiable Instruments Act.

Being aggrieved by the same, the petitioner accused had

preferred criminal revision application No. 144 of 2004 before

the Sessions Court at Osmanabad and learned 2 nd Adhoc

Additional Sessions Judge, Osmanabad by its impugned order

dated 14.12.2006 dismissed the said revision. Hence, this writ

petition.

3. Learned counsel for the petitioner submits that prior to filing of

the said complaint, respondent sugar factory had issued legal notice

on 28.7.2003 to the petitioner alleging therein that though he had

obtained an amount of Rs.2,50,000/- as an advance for carting the

sugarcane for the crushing season 2002-03, the petitioner had not

provided the vehicles for the same. Thereafter, respondent sugar

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factory persuaded the petitioner to return the said advance amount

alongwith interest. The petitioner accordingly, issued a cheque No.

468771 for Rs.2,87,134/-. The respondent sugar factory had

presented the said cheque with its banker, however, the same came

to be dishonoured. In reply to the said notice, the present petitioner

contended that he had entered in an agreement with respondent

sugar factory for the crushing season 2002-03 and in terms of the

said agreement, provided one tractor and three trucks to the sugar

factory for carting the sugarcane and respondent sugar factory had

given him advance amount of Rs.5,00,000/- for that purpose. The

petitioner has specifically stated in his reply that as security for the

said advance amount of Rs.5,00,000/-, the respondent sugar factory

had obtained three signed blank cheques from him and thus sugar

factory subsequently with some ulterior motive misused the said

blank cheques. Learned counsel submits that the petitioner had

mentioned the numbers of said three blank cheques in his reply and

respondent sugar factory had thereafter used another blank cheque

showing transaction between the sugar factory and brother of the

petitioner and accordingly filed false complaint against him. Learned

counsel for the petitioner submits that learned Sessions Judge has

decided the criminal revision application without affording an

opportunity of being heard to the petitioner. Learned counsel submits

that the petitioner never issued cheque to respondent No.2 with

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regard to the alleged transaction entered by his brother with the

sugar factory.

4. Learned counsel for the respondent original complainant

submits that scope of enquiry under Section 202 of Cr.P.C. is very

limited and after recording verification statement of the complainant

and on perusal of contents of complaint, learned Judge of the trial

court has rightly issued process for the offence punishable under

Section 138 of Negotiable Instruments Act, since prima facie case is

made out against the petitioner accused. Learned counsel submits

that defence of accused cannot be considered at the stage of

issuance of process and the petitioner accused is always at liberty to

raise defence available to him during the course of trial. Learned

counsel submits that there is no substance in the writ petition and

writ petition is liable to be dismissed.

5. It is true that the scope of enquiry under Section 202 of Cr.P.C.

is extremely limited and the Court has to see whether prima facie

case is made out for issuance of process or not. In the instant case,

the cheque with certain amount is signed by the present petitioner

and respondent sugar factory has presented the said cheque in the

bank. Furthermore, as intimated by the bank, the said cheque came

to be dishonored for want of sufficient funds in the account of the

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petitioner accused. Even though the respondent sugar factory has

issued demand notice to the petitioner accused, instead of complying

the demand made in the notice, petitioner accused has denied the

contents thereof. The respondent sugar factory has also submitted

original cheque, office copy of demand notice and acknowledgement

of the said demand notice by the petitioner accused, before the Court

alongwith the complaint.

6.

At the stage of issuance of process, there is no reason for the

Court to consider the defence available to the petitioner accused.

The petitioner accused can raise the defence during the course of

trial that respondent sugar factory had obtained the blank cheques

from the petitioner accused as a security for the transaction entered

into by the sugar factory with the brother of the petitioner accused,

the respondent sugar factory had misused the said cheque and filed

a false complaint against the petitioner. However, this defence

cannot be considered at the time of issuance of process. The learned

Magistrate has rightly passed order of issuance of process for the

offence punishable under Section 138 of Negotiable Instruments Act

against the petitioner accused. The learned 2nd Adhoc Additional

Sessions Judge, Osmanabad has confirmed the said order on the

ground that the complaint is based on documentary evidence.

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7. In the light of above discussion, I do not find any substance in

the writ petition. No interference is called for. The order impugned in

this petition is proper, correct and legal. Writ petition is devoid of any

merits and the same is liable to be dismissed. The writ petition is

accordingly dismissed. Rule discharged.

( V. K. JADHAV, J.)

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