Bombay High Court

Deepak Shamsundar Sarda vs Baban Narayanrao Chormare And Anr on 21 September, 2016

Bench: V.K. Jadhav

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                                                1


                           IN THE HIGH COURT OF JUDICATURE AT BOMBAY,
                                       BENCH AT AURANGABAD 




                                                                                     
                         CRIMINAL WRIT PETITION NO. 373 OF 2007     




                                                             
    Deepak s/o Shamsundar Sarda
    age 25 years, occ. agril, & business
    r/o Vaijapur, tq. Vaijapur
    Dist. Aurangabad.                                                      .. PETITIONER




                                                            
    VERSUS
     




                                               
    1.        Baban s/o narayanrao Chormare
              age 45 years, occ. service
                                 
              r/o Ambelohal, Tq. Gangapur
              Dist. Aurangabad.

    2.        The State of Maharashtra                                     .. RESPONDENTS
                                
    Mr. M.G. Mustafa, advocate for petitioner.
    Mr. A.R. Kale, APP for the State.
      


    Mr. P.N. Sonpethkar, advocate for respondent no. 1. 
                                                          =====
   



                                                      CORAM :  V.K. JADHAV, J.  
                                                      DATE    :  21st SEPTEMBER,  2016. 





     
    JUDGMENT :

1. Heard.

2. Rule. Rule made returnable forthwith.

3. Being aggrieved by the judgment and order passed by the learned

Additional Sessions Judge, Aurangabad, dated 22nd September, 2006, in

criwp373.07.doc

Criminal Revision Application No. 130/2006, the original complainant has

preferred this writ petition.

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

Petitioner - original complainant filed private complaint before the

Judicial Magistrate First Class, Vaijapur, alleging therein that the

respondent-accused is his friend and he was in need of an amount of

Rs.70,000/- for payment of private dues and for other purposes.

Respondent-accused no. 1 requested him for the said amount in the month

of August 2005. Even, respondent-accused had promised petitioner-

complainant for repayment of said amount within a month. Thus,

petitioner-complainant had paid the amount of Rs.70,000/- to him on

28.08.2005 by accepting cheque of Rs.70,000/- dated 27 th September, 2005.

However, after presenting said cheque in the bank, it was returned with the

endorsement of "insufficient funds" in the account maintained by

respondent-accused. It has further alleged in the complaint that thereafter

within stipulated time, petitioner-complainant issued legal notice to

respondent-accused calling upon him to pay amount under the cheque

however, respondent-accused had not bothered to reply said notice. Thus,

petitioner-complainant was constrained to file complaint before the Court

against accused for the offence punishable under section 138 of the

Negotiable Instrument Act.

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Learned Judicial Magistrate, First Class, Vaijapur, by order dated 9 th

March, 2006, after recording the verification statement of the complainant

and on perusal of the documents submitted alongwith complaint, issued

process against respondent-accused under section 138 of the Negotiable

Instrument Act as the learned Magistrate found sufficient ground to

proceed. Being aggrieved by the same, respondent-accused preferred

Criminal Revision Application No. 130/2006 before the Sessions Court,

Aurangabad and, the learned Additional Sessions Judge, Aurangabad, by

impugned order dated 22nd September, 2006, allowed the application and set

aside the order passed by the Magistrate and discharged respondent-

accused from the charge levelled against him. Hence this writ petition.

5. Learned counsel for petitioner submits that the learned Additional

Sessions Judge has considered the defence of respondent-accused and

accordingly allowed said revision application. Learned counsel submits that

respondent-accused has challenged the order of issuance of process passed

by the Magistrate and the learned Additional Sessions Judge should have

considered said challenge to the limited extent of the order passed by the

Magistrate issuing process against accused under section 138 of the

Negotiable Instrument Act. Learned counsel submits that even respondent-

accused had not bothered to reply the demand notice issued by petitioner-

complainant. Respondent-accused has produced before the Additional

Sessions Judge the xerox copies of Isar Pavati of the agreement and also

xerox copies of the legal notice issued by him to the petitioner-complainant.

Learned counsel submits that even though complainant is not subjected to

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cross examination on the basis of these documents and, even though

original documents are not produced before the Court and proved, the

learned Additional Sessions Judge has considered said documents and

accordingly allowed the revision application. Learned counsel submits that

the judgment and order passed by the Additional Sessions Judge is not

proper, correct and legal and the same is thus liable to be quashed and set

aside.

6. Learned counsel for respondent-accused submits that respondent-

accused has challenged the order of issuance of process and accordingly

brought to the notice of the the learned Additional Sessions Judge the real

transaction between the parties in the year 2006. In view of pronouncement

of the Hon'ble Supreme Court in the case of Adalat Prasad Vs. Rupal Jindal

reported in 2004(4) Mh.L.J. 294, respondent-accused was not at liberty to

appear before the Magistrate and file application for recalling the order of

issuance of process. Thus, respondent-accused by producing such

documents before the Additional Sessions Judge, brought to the notice of

the Court that in view of real transaction between the parties with some

ulterior motive, the petitioner-complainant has used blank cheque and filed

false complaint before the Magistrate. Learned counsel submits that the

learned Additional Sessions Judge, Aurangabad has therefore rightly

allowed the revision application and set aside the order of issuance of

process passed by the Magistrate. Learned counsel submits that there is

no substance in the writ petition and, the writ petition is thus liable to be

dismissed.

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7. It is needless to say that the scope of enquiry as provided under

section 202 of the Code of Criminal Procedure is extremely limited and,

while issuing process the Court has to apply its mind to find whether prima

facie case is made out or not. In the instant case, petitioner-complainant in

support of his complaint, produced original cheque, intimation given by the

bank about insufficiency of funds in the account maintained by respondent-

accused, office copy of demand notice issued to respondent-accused and

acknowledgement postal receipt thereof before the Magistrate. Learned

Magistrate after recording verification statement of petitioner-complainant

and on perusal of aforesaid documents found that prima facie case is made

out against respondent-accused and accordingly, issued process for offence

punishable under section 138 of the Negotiable Instrument Act.

8. In revision, respondent-accused has produced before the Court xerox

copies of Isar Pavati agreement executed between him and petitioner-

complainant. According to respondent-accused, by that transaction

petitioner-complainant agreed to sell his Tata Sumo vehicle for certain

amount and since there was a charge of loan of bank on the said vehicle,

cash amount of Rs.18,634/- was paid at the time of agreement and it was

further recited in the agreement to pay remaining amount within one year

alongwith interest. By referring to said agreement, respondent-accused has

also brought to the notice of learned Additional Sessions Judge that

accused-respondent has also given three cheques of Bank of Maharashtra to

the complainant as a security for the said amount. Respondent-accused

criwp373.07.doc

may have a good case in the trial however, the learned Additional Sessions

Judge has committed a grave mistake of law in considering xerox copies of

the documents produced by respondent-accused. It is needless to say that

if respondent-accused wants to rely upon certain documents, he has to

produce the original documents before the Court and is required to prove

the same. Furthermore, those documents are required to be brought to the

notice of the petitioner-complainant and he should be given opportunity to

say something in respect of the said document.

In view of above, the judgment and order passed by the Additional

Sessions Judge, Aurangabad does not stand and the same is liable to be

quashed and set aside. Accordingly, I proceed to pass the following order :

ORDER

1. Criminal Writ Petition is hereby allowed.

2. Judgment and order passed by the learned Additional Sessions Judge, Aurangabad, dated 22nd September, 2006, in Criminal Revision Application No. 130/2006 is hereby quashed and set aside.

3. Summary Criminal Case No. 229/2006 shall be restored to its original position and the learned Magistrate is hereby directed to proceed with the said case in accordance with law.