Pratik Shankar Gokhe And Another vs The State Of Mah.T Hr. Pso Ps Wadi ...
2023 Latest Caselaw 1798 Bom

                                                                41.apl.789.2022 judge.odt
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        IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                           NAGPUR BENCH, NAGPUR.

          CRIMINAL APPLICATION (APL) NO.789 OF 2022

1.        Shri Pratik Shankar Gokhe,
          Aged about 38 Yrs., Occ.: Business,

2.        Sau. Vijaya Pratik Gokhe,
          Aged about 28 Yrs., Occ. : Business,

          Both R/o. L/26, Niri Road,
          Deekshabhumi, Vasant Nagar,
          Nagpur-440022                                                   .... APPLICANTS


                                     // V E R S U S //

1.        The State of Maharashtra,
          Through Police Station Officer,
          Police Station, Wadi,
          Tah. & Distt. Nagpur

2.        Vasanta Gulabrao Kapnichor,
          Aged 43 Yrs., Occ.: Private
          R/o. Juni Wasti, Waddhamana,
          Tahsil and Distt. Nagpur
                                                                 ... NON-APPLICANTS
--------------------------------------------------------------------------------------------------
          Shri. Bhushan Dafle, Advocate for the applicants
          Shri H. D. Dubey, APP for non-applicant No.1
          Shri O. R. Deshpande, Advocate for non-applicant No. 2
--------------------------------------------------------------------------------------------------
               CORAM : G. A. SANAP, J.

DATE : 22/02/2023

ORAL JUDGMENT :

1. Heard.

41.apl.789.2022 judge.odt

2. Rule. Rule made returnable forthwith. Heard finally

with the consent of learned Advocates for the parties.

3. In this application, made under Section 482 of the

Code of Criminal Procedure, the prayer is made for quashing the

criminal complaint filed by the non-applicant No.2, who is the

complainant, under Section 138 of the Negotiable Instruments Act,

1881 (For short 'the N. I. Act') against the applicants, who are the

accused and also for quashing the order of issuance of process dated

30.08.2021 passed by the 14th Additional Chief Judicial Magistrate,

Nagpur.

4. The parties in this order would be referred by their

nomenclature in the complaint. With the assistance of the learned

Advocates for the parties I have gone through the record and

proceedings. It is stated in the complaint by the complainant that

out of the transaction of sale of land sold to the accused, some

amount was not paid. In order to secure the said payment in terms

of the agreement between the parties the cheque in question

41.apl.789.2022 judge.odt

was issued by the accused No.1. On presentation of cheque for

encashment it was dishonored. The statutory notice was issued.

The notice was not replied. The complainant, therefore, filed the

complaint against the accused Nos. 1 and 2, who are the husband of

wife. Learned Magistrate issued the process against accused Nos. 1

and 2.

5. On going through the facts stated in the complaint

and the fact that the cheque was signed by the accused No.1, it is

seen that there was no justification for filing the complaint against

accused No.2 and also no justification for the learned Magistrate to

issue process against accused No.2. There is no whisper in the

complaint with regard to the vicarious liability in any manner of

accused No.2 with accused No.1. Therefore, in my view, this

complaint as well as the order of issuance of process against the

accused No.2 cannot be sustained. It is required to be quashed and

set aside.

6. In order to justify this submission, the learned

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Advocate for the accused took me through the record and

proceedings. Learned Advocate submitted that even against accused

No.1 no prima facie case has been made out. Learned Advocate for

the complainant fairly conceded that the cheque was not issued by

the accused No.2 and therefore, there may not be justification to

proceed against her. However, learned Advocate submitted that as

far as the accused No.1 is concerned the basic ingredients of section

138 of the N. I. Act have been satisfied.

7. In order to appreciate these submissions, I have gone

through the record and proceedings. In my view, as far as the

accused No. 2 is concerned, there is no substance in the application.

However, the complaint as well as the order of issuance of process

cannot be set aside against the accused No.1. In view of this, as far

as accused No.2 is concerned, the application is allowed.

8. The Summary Criminal Complaint No. 10456 of

2021 and the order of issuance of process dated 30.08.2021 passed

by the 14th Additional Chief Judicial Magistrate, Nagpur is quashed

41.apl.789.2022 judge.odt

and set aside as against accused No.2. As far as the accused No.1 is

concerned, the application stands dismissed.

9. Rule accordingly.

10. The criminal application stands disposed of.

(G. A. SANAP, J.)

Namrata

Signed By:NAMRATA YOGESH DHARKAR P. A.

High Court Nagpur Signing Date:24.02.2023 17:17