Bombay High Court
Kailash S/O Natthuji Waghmare vs Maharshi Sudarshan ... on 26 September, 2017
Bench: P.N. Deshmukh
1 wp444.09
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH : NAGPUR
CRIMINAL WRIT PETITION NO.444 OF 2009
Shri Kailash s/o Natthuji Waghmare,
aged 32 years, occupation : business,
r/o Quarter No.128, Panchpaoli,
Thakkargram, Nagpur. ... Petitioner
- Versus -
Maharshi Sudarhan Bahuuddeshiya
Seva Sahakari Sanstha Maryadit,
Nagpur, through its Manager
Shri Kishor s/o Shankarlal Birha,
Office at near Shantinagar Garden,
Behind N.M.C. Primary School,
Shanti Nagar, Nagpur. ... Respondent
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CORAM : P.N. DESHMUKH, J.
DATED : SEPTEMBER 26, 2017
ORAL JUDGMENT :
None for the parties.
2) The record reveals that on the earlier date, though Counsel for
petitioner was present, as none was present for respondent, matter was
adjourned to today with a view to give one more opportunity to
respondent to defend the petition on merits. Today neither parties nor
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their Counsel are present. The petition is, therefore, considered on merits
as no record and proceedings are found necessary in view of the fact that
challenge in this petition is to orders of learned Magistrate and learned
revisional Court not taking cognizance against respondent for the offence
punishable under Section 138 of the Negotiable Instruments Act. The
petition is required to be considered also in view of the fact that stay to
trial is operating since 29/8/2009 when notice came to be issued to
respondent.
3) It is noted that petitioner has filed complaint against
respondent/accused no.1 and two others under Section 138 of the
Negotiable Instruments Act alleging that respondent/accused no.1 is
Manager of Maharshi Sudarshan Bahuuddeshiya Seva Sahakari Sanstha
Maryadit, Nagpur and accused nos.2 and 3 are Secretary and Member of
said Society having joint account with Nagpur District Central Cooperative
Bank Ltd., Nagpur. In the complaint, petitioner has given details of his
transactions with accused and issuance of disputed cheque. It is further
noted that learned Magistrate after recording verification of complainant
and finding that disputed cheque is signed by accused nos. 2 and 3, which
came to be dishonoured, issued process against them only and discharged
respondent. The said order was assailed by petitioner before learned
revisional Court, who by judgment dated 23/1/2009 dismissed the
revision. Hence, this petition.
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4) Before proceeding further, it is necessary to state that from the
record it appears that learned Magistrate by issuing process against
accused nos.2 and 3 only, has discharged accused no.1, finding that he is
not signatory to the disputed cheque. However, learned trial Court while
passing such order discharging accused no.1 does not appear to have
properly worded the same as the said order is within the ambit of
Section 203 of Code of Criminal Procedure and as per said Section, if it is
found by learned Magistrate that there are no sufficient grounds to
proceed, then he is required to dismiss the complaint against all accused
or a particular accused. It is, however, found that learned trial Court
finding that no case is made out against accused no.1, instead of
dismissing the complaint against him, used words that accused no.1 is
discharged. In other words, since learned Magistrate did not find
sufficient material to proceed against accused no.1, it was necessary for
him to dismiss the complaint under Section 203 of Code of Criminal
Procedure against said accused.
5) Coming to the merits part of the present petition, it is found
that after issuance of process against accused nos..2 and 3 only,
petitioner/complainant vide Exh. 24 filed application before learned
trial Court and by order dated 25/8/2008, learned trial Court rejected
the said application holding that Court has no power to recall its own
order. Petitioner thus approached learned revisional Court by way of
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revision, which came to be dismissed as aforesaid.
6) From the order of learned revisional Court, it appears that
learned revisional Court has duly considered the fact of issuance of
disputed cheque, which is on record having signatures of Secretary and
member only of Maharshi Sudarshan Bahuuddeshiya Seva Sahakari
Sanstha Maryadit, Nagpur. As such, there is no signature of either
President or Manager of the said Society. Respondent in the petition is
shown as Manager of the said Society and admittedly, he is not signatory
to the disputed cheque. Similarly, in the complaint, respondent is shown
as Manager of the said Society.
7) In view of above stated facts when provisions of Section 138
of the Negotiable Instruments Act are considered, it goes without saying
that this Section is in respect of dishonour of cheque for insufficiency of
funds in the Account and, therefore, persons, who had signed the disputed
cheque, are made accused. In the present petition, as stated above, no
signature of respondent appears on the disputed cheque and, therefore,
since respondent does not appear to have signed the cheque, he cannot
be prosecuted under Section 138 of the Negotiable Instruments Act.
8) Considering the above legal position, learned Magistrate thus
appears to have rightly refused to proceed against respondent by
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dismissing complaint against respondent. In view of above stated facts,
learned trial Court has rightly rejected Exh. 24 moved by petitioner by
observing that it has no power to recall its own order. The learned
revisional Court having considered facts involved in the revision has
rightly dismissed the same. The impugned orders are just and proper and
need no interference. The petition is, therefore, dismissed. Rule is
discharged. No order as to costs.
JUDGE
khj
