Bombay High Court
Viral Enterprises And Ors vs The State Of Maharashtra And Anr on 10 June, 2024
Author: N. J. Jamadar
Bench: N. J. Jamadar
2024:BHC-AS:22793
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
APPELLATE SIDE CRIMINAL JURISDICTION
WRIT PETITION NO.3034 OF 2023
WITH
WRIT PETITION NO.3035 OF 2023
VISHAL
SUBHASH WITH
PAREKAR WRIT PETITION NO.3047 OF 2023
Digitally signed by
VISHAL SUBHASH
WITH
PAREKAR
Date: 2024.06.10 WRIT PETITION NO.3045 OF 2023
18:56:22 +0530
Viral Enterprises ...Petitioner
vs.
The State of Maharashtra and Another ...Respondents
Mr. Mangesh Patel, for the Petitioner
Mr. S.R. Agarkar, APP for the State.
Mr. Jatin Karia (Shah) a/w. Ms. Snehankita Munj, Mrs. Dipti Jatin
Karia, Ms. Shradha Kamble and Ms. Preeti S.G., for Respondent No.
2.
CORAM : N. J. JAMADAR, J.
RESERVED ON : FEBRUARY 8, 2024
PRONOUNCED ON : JUNE 10, 2024
JUDGMENT :
1. Rule. Rule made returnable forthwith. With the consent of the
learned counsel for the parties, heard finally.
2. The following question of law is sought to be raised in all these
petitions, which arises in the backdrop of almost identical facts.
"Whether a person who is an accused in complaint
for an offence punishable under section 138 of NI
Act, 1881 is entitled to give evidence on an affidavit
as provided under section 145 of the NI Act, 1881 ?"
Vishal Parekar ...1
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3. The bare minimum facts required to be noted to determine the
aforesaid question of law can be summarized as under:-
The original complainant-Respondent No. 2, in each of
the petitions, filed complaints for commission of offence
punishable under section 138 of Negotiable Instruments Act,
1881 (NI Act, 1881) alleging issue, presentment and dishnour
of the cheques, drawn by the petitioners and the failure of the
petitioners to pay the amount covered by the cheques despite
service of the demand notice within the stipulated period. The
complainant adduced evidence and upon completion of the
evidence, the statement of the accused, under section 313 of
the Code of Criminal Procedure, 1973 came to be recorded. In
the said examination under section 313 of the Code, the
petitioner No.2/ accused stated that, he would examine
himself on oath and also lead evidence in defence.
4. The petitioners, thereafter, tendered an affidavit in lieu of
examination in chief of petitioner No. 2. The respondent No. 2-
complainant objected to the leading of evidence on an affidavit by
the accused on the premise that the accused has no right to adduce
evidence by way of affidavit under section 145 of the NI Act, 1881.
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5. By the impugned order, the learned Metropolitan Magistrate
declined to accept the evidence of the accused on an affidavit, while
granting liberty to the accused to examine himself on oath in the
witness box.
6. Being aggrieved, the petitioners-accused have invoked writ
jurisdiction.
7. The substance of the petition is that if viewed in the light of
the object of insertion of the provisions contained in section 143 to
147 of the NI Act, 1881, by Act, 55 of 2002, the accused also has a
right to adduce his evidence on an affidavit. The learned
Metropolitan Magistrate was in error in declining to accept such
evidence on affidavit by placing reliance on the decision of the
Supreme Court in the case of Mandvi Cooperative bank Limited vs.
Nimesh B. Thakore1 as the subsequent judgment of the Supreme
Court in the case of Indian Bank Association and Ors. vs. Union of
India and Ors.2 had further expanded the scope of provisions
contained in section 145 of the NI Act, 1881, with a view to give
impetus for expeditious conclusion of the proceedings under section
138 of NI Act, 1881 and the said decision was not properly
1 (2010) 3 Supreme Court Cases 83.
2 AIR 2014 Supreme Court 2528.
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construed by the learned Magistrate. Thus, to advance the object of
the provisions contained in sections 143 and 145 of the NI Act,
1881, the petitioners/ accused deserve to be permitted to adduce
the evidence on an affidavit.
8. I have heard Mr. Mangesh Patel, learned counsel for the
petitioner, Mr. S.R. Agarkar, learned APP for the State and Mr. Jatin
Karia (Shah), learned counsel for respondent No. 2.
9. At the outset, Mr. Karia, learned counsel for respondent No. 2
submitted that the aforesaid question sought to be raised by the
petitioner/accused is no longer res integra. The question stands
firmly concluded against the accused by the decision of the
Supreme Court in the case of Mandvi Cooperative bank (supra).
Moreover, this Court in the cases of SBI Global Factors Limited vs.
The State of Maharashtra and Ors3 and Nitin Shriram Sabe vs.
Prakashrao Keshavrao Deshmukh4, has repelled the endeavour of
the accused, who are facing the prosecution under section 138 of NI
Act, to reopen the issue on the ground of subsequent judgment in
the cases of Indian Bank Association (supra), and the judgment of
Gujrat High Court in the case of Rakeshbhai Maganbhai Barot vs.
3 2021 SCC OnLine Bom 365.
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State of Gujrat5. Thus, this petition being devoid of substance and
having been filed with a view to delay the disposal of the complaints,
deserves to be summarily dismissed.
10. Mr. Mangesh Patel, the learned counsel for the petitioner,
joined the issue by canvassing a submission that the objection based
on the decision in the case of Mandvi Cooperative bank (supra)
overlooks the subsequent decision in the case of Indian Bank
Association (supra). Mr. Patel made an endeavour to persuade the
Court to hold that Supreme Court in the case of Indian Bank
Association (supra) gave its imprimatur to the proposition that
even an accused can adduce his evidence of an affidavit. Indian
Bank Association (supra) being a subsequent judgment of co-equal
strength, the latter commands more precedential value. Mr. Patel
laid particular emphasis on the direction No. 5 issued by the
Supreme Court in the case of Indian Bank Association (supra).
11. Mr. Patel further urged that the learned single judges of this
Court in the cases of SBI Global Factors Limited (supra) and Nitin
Sabe (supra) have not correctly appreciated the true import of the
decision of the Supreme Court in the case of Indian Bank
Association (supra). On the contrary, Gujrat High Court, in the case
5 Laws (GJH) 2019 1 21.
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of Rakeshbhai Barot (supra) and Karnataka High Court in the case
of Afzal Pasha vs. Mohamed Ameerjan 6 have appreciated the ratio
of the judgment of Indian Bank Association (supra) in a correct
perceptive as it advances the object of inserting section 145 of the
NI Act, 1881.
12. Mr. Patel further urged, the omission to include the word
"accused" in section 145 of the NI Act, 1881 is for an obvious reason
which the learned single Judges of the Karnataka High Court and
Gujrat High Court have expounded in the aforesaid decision. It was
further urged that, at any rate, no element of prejudice is likely to
be caused to the complainant if the accused is permitted to adduce
evidence on an affidavit. The complainant would have effective
opportunity to cross examine the accused. Therefore, a procedure
which advances the cause of expeditious conclusion of the
complaint under section 138 of NI Act, 1881 deserves to be
preferred, submitted Mr. Patel.
13. In the case of SBI Global Factors Limited (supra) and Nitin
Sabe (supra), the learned single judge of this Court have held that
the question sought to be raised by the accused, like petitioner
herein, is no longer res integra and stands concluded by the
6 Cri. Petition No. 1684 of 2016, Dt. 09/08/2016.
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decision of the Supreme Court in the case of Mandvi Cooperative
bank (supra). At the outset, it must be noted these decisions, being
rendered by co-ordinate Benches, bind this Court.
14. Mr. Patel made a strenuous effort to demonstrate that the
issue cannot be said to have been concluded by the judgment in the
case of Mandvi Cooperative bank (supra) as the scope of section
145 of the NI Act, 1881 was further expanded by the Supreme
Court in the case of Indian Bank Association (supra) and,
therefore, this Court, if warranted, may refer the issue to a larger
Bench.
15. I have given anxious consideration to the submissions
canvassed on behalf of the parties. In view of the submission
canvassed by Mr. Patel, on the premise that Indian Bank
Association (supra) deviates from the decision in the case of
Mandvi Cooperative bank (supra), I deem it appropriate to consider
the issue sought to be raised in this petition in the light of the text
and context of the provisions contained in sections 143 and 145 of
the NI Act, 1881. With the insertion of Chapter XVII into NI Act,
1881, there was an exponential increase in the complaints under
section 138 of NI Act, 1881 putting enormous strain on the criminal
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justice administration system. The Negotiable Instruments
(Amendment and Miscellaneous Provisions) Act, 2002 introduced
sections 143 to 147 in Chapter XVII in addition to a number of
changes in Sec.138, 141 and 142 of NI Act, 1881, as they stood then.
16. Section 143 of the NI Act, 1881 empowered the Court to try
the case summarily. Section 144 liberalized method of service of
summons. Section 145, with which we are primarily concerned
with, enabled the Court to record the evidence of the complainant
on an affidavit. Section 146 provided that the bank's slip would be
prima facie evidence of dishonour of cheque. Section 147 made the
offences under the Act compoundable.
17. The statement of objects and reasons appended to the Bill,
inter alia, noted that not only the punishment provided in the Act
had proved to be inadequate, the procedure prescribed for the
Courts to deal with such matters has been found to be cumbersome.
The Courts are unable to dispose of such cases expeditiously in a
time bound manner in view of the procedure contained in the Act.
Clauses (iv) to (vi) of the statement of objects and reasons deserve
to be noted. They read as under:-
(iv) To prescribe procedure for dispensing with preliminary
evidence of the complainant.
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(v) To prescribe procedure for servicing of summons to the
accused or witness by the Court through speed post or
empanelled private couriers.
(vi) To provide for summary trial of the cases under the Act
with a view to speeding up disposal of cases.
18. Evidently, the Parliament intervened to give impetus to
expeditious disposal of the complaints under section 138 of the NI
Act, 1881, by unshackling the Courts with procedural constraints
prescribed under the Code, 1973. Yet, the Parliament, as is evident
from the text of section 145, adopted a restrained approach in the
matter of recording of evidence on affidavit and restricted it to the
complainant. Immediately after the insertion of section 145 in NI
Act, 1881 questions were raised as to whether the omission of the
word, "accused" was conscious and deliberate or despite such
omission the Courts can permit even the accused to adduce the
evidence on an affidavit.
19. This Court while dealing with a large number of petitions
wherein the various facets of the amended provisions of NI Act,
1881 came up for consideration, inter alia, held that the evidence in
defence like the complainant's evidence also be given on an
affidavit. When the matter went in appeal before the Supreme
Court, in the case of Mandvi Cooperative bank (supra), the
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Supreme Court, inter alia, considered the following question :-
"Whether the right to give evidence on affidavit
as provided to the complainant under Section 145(1) of
the Act is also available to the accused ? "
20. After an elaborate analysis, the Supreme Court held that this
Court had overreached itself and took the course that amounts to
taking over legislative functions. The observations of the Supreme
Court in paragraph Nos. 44 to 48 and 52 are instructive and, hence,
extracted below.
44] Coming now to the last question with regard to the
right of the accused to give his evidence, like the
complainant, on affidavit, the High Court has held that
subject to the provisions of sections 315 and 316 of the
Code of Criminal Procedure the accused can also give his
evidence on affidavit. The High Court was fully conscious
that section 145(1) does not provide for the accused to give
his evidence, like the complainant, on affidavit. But the
High Court argued that there was no express bar in law
against the accused giving his evidence on affidavit and
more importantly providing a similar right to the accused
would be in furtherance of the legislative intent to make
the trial process swifter.
45] In para 29 of the judgment, the High Court observed as
follows:
"It is true that section 145(1) confers a right on
the complainant to give evidence on affidavit. It does
not speak of similar right being conferred on the
accused. The Legislature in their wisdom may not
have thought it proper to incorporate a word
`accused' with the word `complainant' in sub-section
(1) of section 145 in view of the immunity conferred
on the accused from being compelled to be a witness
against himself under Article 20(3) of the
Constitution of India...."
Then in paragraph 31 of the judgment it observed:
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".... Merely because, section 145(1) does not
expressly permit the accused to do so, does not
mean that the Magistrate cannot allow the accused
to give his evidence on affidavit by applying the
same analogy unless there is just and reasonable
ground to refuse such permission. There is no
express bar on the accused to give evidence on
affidavit either in the Act or in the Code..... I find no
justified reason to refuse permission to the accused
to give his evidence on affidavit subject to the
provisions contained in sections 315 and 316 of the
Code."
46] On this issue, we are afraid that the High Court
overreached itself and took a course that amounts to
taking-over the legislative functions. On a bare reading of
section 143 it is clear that the legislature provided for the
complainant to give his evidence on affidavit and did not
provide for the accused to similarly do so. But the High
Court thought that not mentioning the accused along with
the complainant in sub-section (1) of section 145 was
merely an omission by the legislature that it could fill up
without difficulty. Even though the legislature in their
wisdom did not deem it proper to incorporate the word
`accused' with the word `complainant' in section 145(1), it
did not mean that the Magistrate could not allow the
accused to give his evidence on affidavit by applying the
same analogy unless there was a just and reasonable
ground to refuse such permission.
47] There are two errors apparent in the reasoning of the
High Court. First, if the legislature in their wisdom did not
think "it proper to incorporate a word `accused' with the
word `complainant' in section 145(1)......", it was not open
to the High Court to fill up the self perceived blank.
Secondly, the High Court was in error in drawing an
analogy between the evidences of the complainant and the
accused in a case of dishonoured cheque. The case of the
complainant in a complaint under section 138 of the Act
would be based largely on documentary evidence.
48] The accused, on the other hand, in a large number of
cases, may not lead any evidence at all and let the
prosecution stand or fall on its own evidence. In case the
defence does lead any evidence, the nature of its evidence
may not be necessarily documentary; in all likelihood the
defence would lead other kinds of evidences to rebut the
presumption that the issuance of the cheque was not in the
discharge of any debt or liability. This is the basic
difference between the nature of the complainant's
evidence and the evidence of the accused in a case of
dishonoured cheque. It is, therefore, wrong to equate the
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defence evidence with the complainant's evidence and to
extend the same option to the accused as well.
.. ....
52] In light of the above we have no hesitation in holding
that the High Court was in error in taking the view, that on
a request made by the accused the magistrate may allow
him to tender his evidence on affidavit and consequently,
we set aside the direction as contained in sub-paragraph
(r) of paragraph 45 of the High Court judgment. The appeal
arising from SLP (Crl.) No. 3915/2006 is allowed.
21. Indian Bank Association and Others filed Writ Petition before
the Supreme Court under Article 32 of the Constitution of India
seeking appropriate guidelines, directions to be followed by all the
Courts dealing with complaints under section 138 of NI Act, 1881 so
as to ensure expeditious disposal of the complaints. In Indian Bank
Association (supra), the Supreme Court took note of the decision in
the case of Mandvi Cooperative bank (supra) and issued a number
of directions. Direction 5, on which Mr. Patel placed very strong
reliance, reads as under:-
(5) The Court concerned must ensure that examination-
in-chief, cross-examination and re-examination of the
complainant must be conducted within three months of
assigning the case. The Court has option of accepting
affidavits of the witnesses, instead of examining them in
Court. Witnesses to the complainant and accused must
be available for cross-examination as and when there is
direction to this effect by the Court.
(emphasis supplied)
22. Special emphasis was laid on the observations, "the Court has
option of accepting affidavits of the witnesses. The word
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"witnesses", according to Mr. Patel, subsumes in its fold an accused.
Therefore Indian Bank Association (supra) expands the scope of
section 145 and permits the Court to record the evidence of accused
on affidavit. To this extent, the Indian Bank Association (supra)
deviates from the decision of the Supreme Court in the case of
Mandvi Cooperative bank (supra).
23. To bolster up the aforesaid submission, Mr. Patel invited the
attention of the Court, to the decision of the Gujrat High Court in
the case of Rakeshbhai Barot (supra) and Karnataka High Court in
the case of Afzal Pasha (supra).
24. I have perused the judgments in the cases of Rakeshbhai
Barot (supra) and Afzal Pasha (supra). Rakeshbhai Barot (supra)
substantially followed the reasoning of the decision of the
Karnataka High Court in the case of Afzal Pasha (supra). It would,
therefore, be expedient to extract the observations in the case of
Afzal Pasha (supra), which reads as under:-
2) The petition is filed by the accused, against whom a
complaint is filed before the court below alleging an offence
punishable under Section 138 of the Negotiable
Instruments Act, 1881 (Hereinafter referred to as the 'NI
Act', for brevity). The petitioner is contesting the case. At
the stage when the case was set down for the evidence of
the accused, he is said to have filed an application under
Section 145(2) of the NI Act, seeking permission of the
court to file an affidavit in lieu of oral evidence. The trial
court having rejected the application on the ground that
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the same is not permissible, the present petition is filed.
3) The learned counsel for the petitioner places reliance on
the language of Section 145 of the NI Act to contend that
the trial court has not taken into consideration the intent
of the provision, which has been interpreted by the Apex
Court in the case of Indian Bank Association v. Union of
India, (2014)5 SCC 590.
...... .....
5) ...... Therefore, it is clear that having regard to the
Scheme of the CrPC, the legislature in its wisdom has left it
open to the accused to exercise the option of examining
himself as a witness for an offence punishable under
Section 138 of the NI Act, in deliberately omitting any
reference to the evidence of the accused by way of affidavit.
For it would run against a first principle in criminal law
namely, that an accused shall not be called as a witness
except on his own request in writing. The evidence on
behalf of the accused would include that of the accused,
subject to Section 315 CrPC. If the evidence of the
witnesses could be by way of affidavit in terms of Section
145 NI Act, the evidence of the accused could also be way of
affidavit.
A closer scrutiny of Section 145 would indicate that the
same is intended to ensure that the trial is concluded as
expeditiously as possible. The said provision does not in
any manner affect the right of the accused to cross
examine the complainant and his witnesses. The said
provision enables even the defence evidence to be led by
affidavits. Thus, the said provision is purely procedural in
nature. In this behalf, the Apex court has in Shreenath v.
Rajesh, AIR 1998 SC 1827, has held that in interpreting
any procedural law, where more than one interpretation is
possible, the one which curtails the procedure without
eluding the justice, is to be adopted. The procedural law is
always subservient to and is in aid to justice. (See: KSL
Industries v. Khandelwal, 2006(1) Mh.LJ (Cri) 86).
The Apex Court in Mandvi Cooperative Bank Limited,
(supra), has not examined the matter in the above
perspective.
On the other hand, the view taken and the directions
issued in a more recent decision of the Apex Court, in the
case of Indian Bank Association (supra) does contemplate
evidence by affidavit by the accused.
.......... ....
Hence, in keeping with judicial propriety, the later
judgment of the Apex court can safely be applied when the
divergent view is that of a co-ordinate bench of the same
court.
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25. Evidently, the Karnataka High Court has proceeded on the
premise that the decision of the Supreme Court in the case of Indian
Bank Association (supra) takes a divergent view from that of
Mandvi Cooperative bank (supra), and Indian Bank Association
(supra), being a latter decision, it can be safely applied as both the
judgments were rendered by Benches of co-equal strength.
26. Two questions come to the fore. First whether Indian Bank
Association (supra) has taken a divergent view ? Second, even if
one proceeds on the premise that there is a deviation from the
decision in the case of Mandvi Cooperative bank (supra), whether
the decision in the case of Indian Bank Association (supra)
commands precedential value for being latter in point of time.
27. In the case of Indian Bank Association (supra), after referring
to the decision in the case of Mandvi Cooperative bank (supra), the
Supreme Court observed, inter alia, as under:-
12] The scope of Section 145 came up for consideration
before this Court in Mandvi Cooperative Bank Limited v.
Nimesh B. Thakore (2010) 3 SCC 83, and the same was
explained in that judgment stating that the legislature
provided for the complainant to give his evidence on
affidavit, but did not provide the same for the accused. The
Court held that even though the legislature in their wisdom
did not deem it proper to incorporate a word "accused"
with the word "complainant" in Section 145(1), it does not
mean that the Magistrate could not allow the complainant
to give his evidence on affidavit, unless there was just and
reasonable ground to refuse such permission.
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... ...
16] We have indicated that under Section 145 of the Act,
the complainant can give his evidence by way of an
affidavit and such affidavit shall be read in evidence in any
inquiry, trial or other proceedings in the Court, which
makes it clear that a complainant is not required to
examine himself twice i.e. one after filing the complaint
and one after summoning of the accused. Affidavit and the
documents filed by the complainant along with complaint
for taking cognizance of the offence are good enough to be
read in evidence at both the stages i.e. pre-summoning
stage and the post summoning stage. In other words, there
is no necessity to recall and re- examine the complaint
after summoning of accused, unless the Magistrate passes
a specific order as to why the complainant is to be recalled.
Such an order is to be passed on an application made by the
accused or under Section 145(2) of the Act suo moto by the
Court. In summary trial, after the accused is summoned,
his plea is to be recorded under Section 263(g) Cr.P.C. and
his examination, if any, can be done by a Magistrate and a
finding can be given by the Court under Section 263(h)
Cr.P.C. and the same procedure can be followed by a
Magistrate for offence of dishonour of cheque since offence
under Section 138 of the Act is a document based offence.
We make it clear that if the proviso (a), (b) & (c) to Section
138 of the Act are shown to have been complied with,
technically the commission of the offence stands completed
and it is for the accused to show that no offence could have
been committed by him for specific reasons and defences.
28. From a correct reading of the decision in the case of Indian
Bank Association (supra), I find it rather difficult to accede to the
submission on behalf of the accused that the said decision deviates
from the view taken by the Supreme Court in the case of Mandvi
Cooperative bank (supra) in the matter of permitting the accused to
lead evidence on an affidavit. The question that arose for
consideration in the case of Mandvi Cooperative bank (supra) was
in the context of the import of amended section 143 and 145 of the
NI Act, 1881, in particular. On the contrary, a larger issue of
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expeditious completion of the trial in the complaints under section
138 of the NI Act, 1881 was the subject matter of the Writ Petition
filed by the Indian Bank Association (supra). In that context, the
Supreme Court gave certain directions. However, despite noting the
decision in the case of Mandvi Cooperative bank (supra), especially
the fact that the provisions contained in section 145 were restricted
to permitting the complainant to lead evidence on affidavit and do
not provide the same dispensation to the accused, Indian Bank
Association (supra) did not struck a discordant note.
29. It is true in clause 5 of the directions in paragraph 21 in the
case of Indian Bank Association (supra) (extracted above), the
Supreme Court observed that the Court has option of accepting
affidavits of the witnesses, instead of examining them in Court.
However, the said direction cannot be read out of context. It is well
recognized that the words in a judgment cannot be read like statute.
A decision is an authority for what it actually decides and not what
logically flows from the said decision.
30. In the case of Mandvi Cooperative bank (supra), a Bench of
co-equal strength of the Supreme Court has elaborately considered
the specific question as to whether an accused can be permitted to
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adduce evidence on oath and ruled against such course of action
ascribing reasons. It cannot be urged that in the the case of Indian
Bank Association (supra), another two Judge Bench of the Supreme
Court delved into the correctness of the said view and took a
diametrically opposite view. The decision in the case of Mandvi
Cooperative bank (supra), in my view, still holds the field.
31. The second aspect of Indian Bank Association (supra), being a
decision latter in point of time, commands precedence, may not
detain the Court. The legal position is absolutely clear.
32. As noted above, in my humble opinion, there is no conflict
between the decisions in the cases of Mandvi Cooperative bank
(supra) and Indian Bank Association (supra). Even if one proceeds
on the premise that decisions in the cases of Mandvi Cooperative
bank (supra) and Indian Bank Association (supra) are
irreconcilable, the rule is to apply the earliest view as the
succeeding one would fall in the category of per incuriam. It would
be suffice to note the statement of law in the case of Sundeep Kumar
Bafna v. State of Maharashtra and Anr.7.
19] It cannot be over-emphasised that the discipline
7 AIR 2014 Supreme Court 1745.
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demanded by a precedent or the disqualification or
diminution of a decision on the application of the per
incuriam rule is of great importance, since without it,
certainty of law, consistency of rulings and comity of
Courts would become a costly casualty. A decision or
judgment can be per incuriam any provision in a statute,
rule or regulation, which was not brought to the notice of
the Court. A decision or judgment can also be per incuriam
if it is not possible to reconcile its ratio with that of a
previously pronounced judgment of a Co-equal or Larger
Bench; or if the decision of a High Court is not in
consonance with the views of this Court. It must
immediately be clarified that the per incuriam rule is
strictly and correctly applicable to the ratio decidendi and
not to obiter dicta. It is often encountered in High Courts
that two or more mutually irreconcilable decisions of the
Supreme Court are cited at the Bar. We think that the
inviolable recourse is to apply the earliest view as the
succeeding ones would fall in the category of per incuriam.
(emphasis supplied)
33. Thus, this Court regrets its inability to agree with the view of
the Karnataka High Court in the case of Afzal Pasha (supra) on
both the counts namely there being an inconsistency in the
decisions in the cases of Mandvi Cooperative bank (supra) and
Indian Bank Association (supra) and Indian Bank Association
(supra), being a latter decision, deserves to be followed.
34. At this stage, it must be noted that apart from the decisions of
learned single Judges of this Court, in the cases of SBI Global
Factors Limited (supra) and Nitin Shriram Sabe (supra), there are
decisions of the other High Courts which have consistently held that
Mandvi Cooperative bank (supra) still holds the field despite the
pronouncement of the Supreme Court in the case of Indian Bank
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Association (supra), to which the attention of the Court was invited
by Mr. Karia, namely, (i) Rajni Dhingra v. Sanjeev Chugh 8; (ii) P.T.
Joy v. K.V. Sivasankaran & Another 9; (iii) Prabhudas Panjainmal
Rice and Dal Mill vs. Avon Trade Link, Shakti Nagar, Katni 10; and
(iv) Rajeshwar Dayal Pareek vs. M/s. Alankar Marble and Grenite
and Ors.11
35. The upshot of aforesaid consideration is that, the decisions of
this Court in SBI Global Factors Limited (supra) and Nitin Shriram
Sabe (supra) have correctly held that the question sought to be
raised by the petitioners is no longer res integra and stands
concluded against the accused by the judgment of the Supreme
Court in the case of Mandvi Cooperative bank (supra). This Court
does not find any reason to take a different view of the matter than
the one taken by the coordinate Benches in the cases of SBI Global
Factors Limited (supra) and Nitin Shriram Sabe (supra). Therefore,
I decline the invitation of Mr. Patel to take a different view of the
matter and refer the question to a larger Bench.
36. Resultantly, the petitions deserve to be dismissed.
8 2019 SCC OnLine P&H 2464.
9 CDJ 2020 Ker HC 384.
10 2021(4) M.P.L.J. 516
11 Raj. High Court, Cri.M.P. No.1549/23 Dt. 25/04/23.
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wp-3034-2023 @3.doc
37. Since the trial in the complaints has reached an advanced
stage and only the evidence for the accused is to be adduced, I deem
it appropriate to request the learned Metropolitan Magistrate to
conclude the trial as expeditiously as possible.
Hence, the following order.
ORDER
1] The petitions stand dismissed.
2] Rule discharged.
3] No costs.
(N. J. JAMADAR, J.)
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