Alka Khandu Avhad vs Amar Shyamprasad Mishra And Anr
2019 Latest Caselaw 27 Bom

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               IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                     CRIMINAL APPELLATE JURISDICTION

                   CRIMINAL WRIT PETITION NO.2595 OF 2019

Alka Khandu Avhad                                             ]
Aged, Adult, Occ : Housewife                                  ]
Res/at, 1302, Raheja Atlantis,                                ]..... Petitioner
Ganpata Rao Kadam Marg,                                       ](Org.Acc.No.2)
Lower Parel (W), Mumbai - 400 013                             ]

      versus

1]    Amar Syamprasad Mishra                                  ]
      Aged Adult, Occ : Advocate                              ]
      Res/at, C-11, Tilak Complex, Ekasar Road,               ]
      Shanti Ashram, Borivali (West),                         ]
      Mumbai - 400103                                         ]
      And                                                     ]
      Sai Mauli Apartment, Achole Cross Road,                 ]
      Nalasopara (E), Thane - 401209                          ]
                                                              ]
2]    The State of Maharashtra                                ]..... Respondents.

Dr. Samarth S Karmarkar a/w Ms. Supriyanka G Maurya i/by Karmarkar & Associates for the Petitioner.

Ms. Sheetal Goad for Respondent No.1 Mr. A R Patil, APP, for the Respondent/State.

                               CORAM       : S. S. SHINDE J.
                               Reserved on : 08th August 2019
                               Pronounced on : 21st August 2019.

JUIDGMENT



1     Rule, with the consent of the learned counsel for the parties made

returnable and heard forthwith.




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2             The above Writ Petition takes an exception to the order dated

23/02/2018 passed by the learned Metropolitan Magistrate, 43 rd Court at

Borivali, Mumbai in C.C. No.2802/SS/2016 thereby issuing the process against

the Petitioner and Co-accused No.1.

3 The facts giving rise for filing of the present Writ Petition, can in

brief be stated thus :-

Respondent No.1 herein is the original Complainant who is a

practicing advocate and is a partner in a solicitor firm in Mumbai known as

SRM Law Associates. The Petitioner is the original accused No.2 and, wife of

original Accused No.1 - Mr. Khandu Kacharu Avhad. It is the case of

Respondent No.1 Complainant that both the accused, who are husband and

wife, approached to the Complainant through one of his client Mr. Nitul

Unadkani in a legal matter with Mr. Chetan Desai. It is the contention of the

complainant that from Jun 2015 till April 2016, the complainant assisted

accused Nos.1 and 2 in preparing replies and notice of motion, conference, co-

coordinating with counsel, filing vakalatnamas and appearing through

advocates' office and also as counsel in Summary Suit Nos.399 of 2015 (Sion

Finance and Leasing private Limited v/s. Alka Avhad); , 400 of 2015 (Sion

finance and Leasing Private Limited v/s. Khandu Avhad), and 1171 of 2015 (A

R Shetty v/s Khandu Avhad) in the City Civil Court at Bombay. The

Complainant has stated that there are approximately 40 emails exchanged

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between the complainant, accused Nos.1 and 2, and Mr. Nitu Unadkant

between June 2015 and April 2016. The complainant has raised a professional

bill for the legal work done by him to represent the accused Nos.1 and 2 in

legal proceedings between the said period. It is the case of the complainant

that thereafter in partial discharge of legal liability, accused No.1 informed the

complainant that due to severe financial stress, they are not able to pay

professional fess immediately, Thereafter accused No.1 handed over to the

complianant a post dated cheque dated 15th March, 2016 bearing No.227050

drawn on union Bank of india of Rs.8,62,000/-. It is further stated in the

complaint that, when the said cheque was presented for encashment, the same

was returned unpaid with endorsement "funds insufficient". Thereafter the

complainant sent advocate's notice dated 21/05/2016 to the accused calling

upon them to pay the amount of Rs.8,62,000/- within 15 days from the date of

receipt of said notice. It is also stated that in said notice that the amount has

wrongly been mentioned Rs.8,62,500/- in stead of Rs.8,62,000/-. The said

notice was duly served upon the accused. However, the accused neither

replied the said notice nor made the payment of the aforesaid dishonoured

cheque. The Complainant therefore filed a complaint for the offence

punishable under Section 138 of the Negotiable Instruments Act against

Accused Nos.1 and 2.

4             The learned Metropolitan Magistrate, 43rd Court, Borivali, Mumbai


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after going through the allegations made in the complaint, verification and the

documents placed on record and after hearing the learned advocate

representing for the complainant, came to a conclusion that prima facie case

has been made out against both the accused for an offence punishable under

Section 138 r./w 141 of the Negotiable Instruments Act, and accordingly by

order dated 23/02/2018 directed to issue process against both the accused for

the offence punishable under Section 138 r/w 141 of the Negotiable

Instruments Act. It is the said order which is taken exception to by way of the

above Writ Petition.

5 Heard the learned counsel appearing for the respective parties.

With their able assistance I have perused the pleadings, grounds taken in the

Petition, and annexure thereto and the affidavit in reply of Respondent No.1

herein, as also the reasons assigned by the trial court in the impugned order

dated 23/02/2018.

6 The learned counsel for the Petitioner submits that the husband of

the Petitioner Mr. Khandu K Avhad, who is original accused No.1 in the

complaint, had appointed Respondent No.1 herein as an advocate to act,

appear and plead for him in the litigation. It is also submitted that Respondent

No.1 has taken accused No.1 in confidence and made him to issue blank

cheque to Respondent No.1. The husband of the Petitioner has timely paid

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Respondent No.1 his litigation fees.

7 According to the Petitioner and her husband, Respondent No.1

was not properly following his matter and not attending the same, hence

accused No.1 asked Respondent No.1 to give his no objection on the

vakalatnama, and after lot of effort Respondent No.1 has given his no objection

upon receipt of the due amount of the professional fees. It is submitted that

Respondent No.1 used the blank cheque signed by accused No.1 Mr. Khandu K

Avhad against him with wrongful intention and then he filed a complaint

against the Petitioner and her husband - accused No.1. It is submitted that

Respondent No.1 has, with an oblique motive, filed the complaint against the

Petitioner and accused No.1, not disclosing true and correct facts. It is done

with a deliberate malafide intention to put pressure and blackmail to the

Petitioner and her husband. Respondent No.1 without applying his mind has

made the Petitioner as co-accused as the Petitioner is victims of circumstances.

It is submitted that neither the said notice nor the complaint in any manner

establishes the role of the Petitioner with the context to the alleged transaction

between Respondent No.1 and co-accused i.e. her husband. The learned

Magistrate while issuing the said process has ignored that the cheque in

question does not bear the name or signature of the Petitioner and also does

not taken into consideration the fact that the Petitioner is not connected with

the said transaction. The learned counsel for the Petitioner submits that the

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Petitioner has no role in the so called transaction, and the cheque in question

has been allegedly issued at the instance of co-accused vide his personal

account in his independent capacity. The learned counsel for the Petitioner

therefore prays that the Petition deserves consideration.

8 The learned counsel for Respondent No.1 original complainant

submits that the complainant has raised a professional bill for the legal work

done by him on behalf of the accused Nos.1 and 2 for the period from Jun

2015 till April 2016 as the complainant legally advised, assisted and

represented accused Nos.1 and 2 in Summary Suit Nos.399 of 2015 (Sion

Finance and Leasing private Limited v/s. Alka Avhad); , 400 of 2015 (Sion

finance and Leasing Private Limited v/s. Khandu Avhad), and 1171 of 2015 (A

R Shetty v/s Khandu Avhad) in the City Civil Court at Bombay. It is also

submitted there are approximately 40 emails exchanged between the

complainant, accused Nos.1 and 2, and Mr. Nitu Unadkant during the said

period. It is also submitted that towards discharging the said legal liability, the

accused handed over cheque dated 15th March, 2016 bearing No.227050

drawn on union Bank of india of Rs.8,62,000/- and when the said cheque was

presented for encashment, the same was returned unpaid with endorsement

"funds insufficient". It is submitted that though a demand notice has been

served upon the accused, the accused neither replied the said notice nor made

the payment of the aforesaid dishonoured cheque. It is also submitted that the

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learned Magistrate therefore has rightly came to a conclusion that prima facie

case has been made out against both the accused for the offence under Section

138 of the Negotiable Instruments Act, and therefore the order of issuing

process needs no interference. The learned counsel for Respondent

No.1/Complainant submits that this Petition is not maintainable since it is

preferred against order passed by the learned Magistrate issuing summons

against the accused, as the Petitioner did not availe the remedy before the

revisional court and has directly approached this Court praying to stay the trial

which has to commence on the next fixed before the trial Court. It is

submitted that though the said summoning order was served upon the

Petitioner, the Petitioner chose not to appear before the magistrate, and it is

after bailable warrant was issued, she appeared before the trial court and

obtained the bail, and the plea was recorded. The learned counsel for

Respondent No.1/Complainant submits that since the Petitioner was medically

unfit, her husband has issued the cheque on her behalf to fulfill her legal

obligation and therefore, there is a joint liability of the Petitioner as well as her

husband. It is submitted that since the Petitioner and her husband were the

clients of Respondent No.1, a bill in the name of the Petitioner's husband was

raised considering the condition of the Petitioner. In support of the aforesaid

contentions, the learned counsel for Respondent No.1 relied upon the

judgments of the Delhi High Court in the case of Rajesh Agarwal v/s. State and

Anr in Cri. M. C. No.1996/2010 and in the case of Ambica Plastopack Pvt. Ltd

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and anr. v/s. State and Anr. in Cri. M. C. No.2698/2011 . He therefore submits

that the Petition may be rejected.

9 It is an undisputed fact that the Petitioner and Co-accused No.1

Khandu K Avhad are the wife and husband. It is an admitted position that the

cheque issued by the husband of the Petitioner on presentation in the bank

came to be dishonoured due to insufficient funds. The learned counsel for

Respondent No.1/Complaint invites attention of this Court to the Bill of Costs

raised by Respondent No.1 dated 15th February 2016, which is at page 36 of

the Writ Paper book wherein the complainant has specifically given the

reference of case numbers and the parties name. The said bill is in respect of

professional bill in three matters mentioned therein, out of which in two

matters the husband of Petitioner - Mr. Khandu Avhad was the Respondent,

and in one matter Petitioner herself was the Respondent. In the said bill the

complainant has given details about the charges of the legal assistance given by

him to the Petitioner and her husband in the aforesaid three matters. Prima

facie it appears that the complainant assisted and represented both the

Petitioner and her husband in the Court.

10 To buttress his case, Respondent No.1/complainant has filed his

affidavit in reply. It is stated in the affidavit in reply that since the bailable

warrant was issued by the trial court against the Petitioner, the Petitioner

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appeared before the trial court on 06 th February 2019 to obtain the bail and his

plea was recorded. But during recording of plea, there was no defence raised

by the Petitioner before the trial Court to prove her innocence. She did not

raise any objection or defence which clearly suggests legally enforceable

liability of the Petitioner towards Respondent No.1. It is also stated in the said

affidavit in reply that the Petitioner and her husband have approach

Respondent No.1 to defend them in the civil suits Nos.399/2015 and 400/2015

before the City Civil Court, Mumbai. It is also stated that Respondent No.1 was

informed by the husband of the Petitioner that the Petitioner is not medically

fit thus the husband of the Petitioner will be coordinating with Respondent

No.1. It is also stated that Respondent No.1 has at all times and at every date

attended the matter and have sent the emails. The Respondent No.1 stated that

since the Petitioner was medically unfit, her husband has issued the cheque on

her behalf to fulfill her legal obligation and therefore there is a joint liability of

both the Petitioner and her husband. The learned counsel for Respondent No.1

invites attention of this Court to the Case Status/Case Details which are

annexed to the affidavit in reply at Exhibit A. Perusal of the said case status

indicates that it relates to the notice of motion, and in the column of

Respondent and Advocate the name of Petitioner Mrs. Alka Avhad and the

name of advocate Ms. SRM Law Associates appear. The learned counsel for

Respondent No.1 also invites the attention of this Court to e-mail dated

08/01/2016 sent by Respondent No.1 to the husband of Petitioner and one Mr.

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Nitul Bhai which is annexed to the affidavit in reply at Exhibit B on page 62. A

careful perusal of the said email would disclose that there is a specific

reference regarding notice of motion and condonation of delay in Summary

Suit No.399. There is also reference of Summary Suit No.400 and Summary

Suit No.1171 of 2015. Respondent No.1 has placed on record the emails

exchanged between him and the husband of the Petitioner. In the said emails

also reference of all the aforesaid three suits have been mentioned. There is e-

mail dated 20/01/2016 on record which sent by Respondent No.1 to the

husband of the Petitioner and Mr. Nitul Bhai. The said email refers to Draft

Reply for approval, Suit No.399 of 2015. It is also mentioned in the said email

that Ms. Alka Avhad (i.e. the Petitioner herein) has to come to affirm the said

reply in their office at fort. In another email dated 18/03/2016 Respondent

No.1 informed the husband of the Petitioner regarding dishonoured of the

cheques and intimating about the discharged in all the three suits due to non-

payment of fees. A demand notice dated 21/05/2016 sent by Respondent No.1

through advocate Virenderakumar Gupta under Section 138 of the Negotiable

Instruments Act to the Petitioner and her husband is also placed on record.

Perusal of the aforesaid material would prima facie reveal that the Petitioner

and her husband were legally assisted and represented before the City Civil

Court by Respondent No.1 in the summary suits. There are specific allegations

made by Respondent No.1 in the complaint that accused No.1 and 2 i.e. the

Petitioner and her husband were referred to the complainant by a common

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friend in the legal matter. It is also alleged that there are approximately 40

emails exchanged between the Petitioner and her husband at the relevant time.

11 Respondent No.1 herein lodged a complaint before the learned

Magistrate for offence punishable under Section 138 of the Negotiable

Instruments against the present Petitioner and her husband. In support of the

said complaint, Respondent No.1 has filed verification, emails exchanged

between him and the Petitioner and her husband and the said Mr. Nitul Bhai,

as also the professional bill raised by Respondent No.1 for the legal charges,

and demand notice before the Trial Court. The Trial Court has came to a

conclusion that prima facie case has been made out against both the accused

for an offence punishable under Section 138 r/w 141 of the Negotiable

Instruments Act and therefore issued process against both the accused. The

contention of the Petitioner that Respondent No.1, with malafide intention,

has filed the complaint against the Petitioner and her husband, and without

applying his mind the complainant has made Petitioner as co-accused, can be

considered and decided only during trial after giving opportunity to the parties

to lead evidence in that regard. It is an undisputed fact that the cheque issued

by the husband of the Petitioner was dishonoured. Whether the said cheque

was issued towards discharging the legal liability of both the accused or,

according to Petitioner, Respondent No.1 used the blank cheque signed by her

husband with wrongful intention is a matter of evidence, which will be

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adduced during the trial.

12 Now coming to the judgments cited by the learned counsel for

Respondent No.1. In Rajesh Agarwal's case the Delhi High Court in paragraph

8 of the said Judgment observed thus :-

"Since offence under section 138 of N. I. Act is a document based technical offence, deemed to have been committed because of dishonour of cheque issued by the accused or his company or his firm, the accused must disclose to the Court as to what is his defence on the very first hearing when the accused appears before the Court. If the accused does not appear before the Court of MM on summoning and rather approaches High Court, the High Court has to refuse to entertain him and ask him to appear before the Court of MM as the High Court cannot usurp the powers of MM and entertain a plea of accused why he should not be tried under section 138."

In Ambica Plastopack Pvt. Ltd's (supra), the Delhi High Court in

paragraph 9 referred the decision in Rajesh Aggarwal v State, 2010(171) DLT

71 wherein it is observed as under :-

"this Court noted that the High Court is flooded with petitions under Section 482 Cr.PC for challenging the summoning order passed by the Magistrate under Section 138 of the Negotiable Instruments Act. This Court further noted that the accused rush to the High Court on mere passing of summoning order and are successful in halting the proceedings before the Magistrate on one or the other ground while the kind of defence raised by the petitioners is required to be raised before the Magistrate at the very initial stage as per the law."

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In the present case also, Respondent No.1 Complainant in his affidavit in reply

has specifically stated that though the order of the learned Magistrate served

upon the Petitioner, she did not appear before the trial Court, but since the

bailable warrant was issued by the trial court against the Petitioner, then the

Petitioner appeared before the trial court to obtain the bail, and her plea was

recorded. It is also specifically stated that at the time of recording of plea,

there was no defence raised by the Petitioner before the trial court to prove her

innocence. It is informed that the matter is fixed for recording of evidence.

This court is of the considered view that filing of present Petition is nothing but

an attempt to prolong the matter.

13 In the light of aforesaid discussion and considering the allegations

made in the complaint, the material placed on record, no case is made out to

cause interference in the order of issuance of process. The Writ Petition stands

rejected. Rule stands discharged.

14 All contentions raised on merits are kept open for being agitated

before the Trial Court. Needless to state that the observations made herein

above are prima facie in nature and confined to the adjudication of the present

Writ Petition.

                                                    [S.S. SHINDE, J.]


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