Bombay High Court
Seema Ganesh Suryawanshi vs Mahesh S/O Chimaji Waghmare on 31 July, 2025
2025:BHC-AUG:20151
(1) cria974.25
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
CRIMINAL APPLICATION NO. 974 OF 2025
Seema Ganesh Suryawanshi .. Applicant
VERSUS
Mahesh s/o. Chimaji Waghmare .. Respondent
Mr. Praveen B. Waghmare, Advocate for the applicant.
Mr. B.V. Virdhe, Advocate for sole respondent.
CORAM : KISHORE C. SANT, J.
RESERVED ON : 14.07.2025
PRONOUNCED ON : 31.07.2025
O R D E R :
-
01. Present Criminal Application is filed praying for quashing and
setting aside impugned order issuing process by the learned 8 th Judicial
Magistrate, First Class, Beed dated 06.07.2023 in SCC No. 909 of 2023.
Prayer is made for quashment of warrant dated 10.07.2024 and the
entire complaint. The application is filed by original accused in a case
under section 138 of the Negotiable Instruments Act. The respondent is a
complainant in the said case.
02. Heard learned Advocates for the parties. The application is
taken up for final disposal by the consent of the parties.
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03. The respondent filed a complaint stating that the applicant
and the respondent know each other. The applicant took hand-loan of
Rs. 9 lakhs from the respondent. Towards discharge of this liability, the
applicant gave a cheque on 31.12.2022 for an amount of Rs. 9 lakhs. On
presentation of said cheque, same was dishonoured with an endorsement
"payment stopped by drawer". Inspite of demand notice, the applicant
could not pay the amount therefore, the respondent filed a complaint.
The learned Trial Court recorded verification, gone through the
documents placed on record and heard learned Advocate for the
complainant. It is on that the learned Trial Court passed an order issuing
process. The applicant is, thus, before this Court.
04. The learned Advocate Mr. Waghmare for the petitioner
vehemently argued that the Trial Judge did not hold any enquiry. No
investigation was directed. The learned Magistrate without undertaking
such exercise has directly issued process only on affidavit-in-leu of
verification. He, thus, submits that the order suffers from non-
application of mind and same deserves to be quashed and set aside.
05. Learned Advocate Mr. Virdhe for the respondent vehemently
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opposes the application. He submits that in the present case the order is
speaking order. It is seen from the order that the learned Court has
considered affidavit-in-leu of verification. The documents on record are
also seen. The satisfaction of the Court is clearly seen from the order.
The learned Advocate for the complainant was also heard. The Trial Court
has further recorded that the accused has issued disputed cheque
towards discharge of legal debt or liability. The cheque was presented in
stipulated time. The demand notice is also issued within one month from
the return of cheque. All these things clearly show that the learned
Judge has applied his mind and it is only thereafter the notice is issued.
He submits relying on the judgment in the case of In Re : Expeditious
Trial of Cases under Section 138 of N.I. Act, 1881 Vs. Case No.
Suo Motu Writ Petition (Cri.) No. 2 of 2020, reported in 2021 AIR
(SC) 1957, that the form of verification and the manner of enquiry is
not prescribed under the Act. He submits that by now it is established
that the order of issuance of process should show application of mind.
He thus prays for rejection of the application. He relies upon following
judgments :-
(i) A.C.Narayanan Vs.State of Maharashtra,2014(1)AIRBomR(Cri)302.
(ii) Annapurna Nayak Vs.Gyan Chand Varshey, 2008 BCR 253.
(iii) V.K. Jain Vs. Pratap P. Padode, 2005(3) MhLJ 778.
(4) cria974.25
. There is no dispute about the propositions in the above
referred cases. The judgments are squarely applicable to the present
case.
06. This Court has gone through the order passed by the learned
Magistrate. It clearly shows that the Trial Court has applied its mind and
it is only thereafter the process is issued. So far as judgment in the case
of Expeditious Trial (supra) is concerned, in para No.24 the Hon'ble
Apex Court clearly recorded the conclusions as follows :-
"24. The upshot of the above discussion leads us to the following
conclusions:
1) The High Courts are requested to issue practice directions to
the Magistrates to record reasons before converting trial of complaints
under Section 138 of the Act from s u m m a r y trial to s u m m o n s
trial.
2) Inquiry shall be conducted on receipt of complaints under
Section 138 of the Act to arrive at sufficient grounds to proceed
against the accused, w h e n such accused resides be y o n d the
territorial jurisdiction of the court
3) For the conduct of inquiry under Section 202 of the Code,
evidence of witnesses on behalf of the complainant shall be permitted
to be taken on affidavit. In suitable cases, the Magistrate can
restrict the inquiry t o examination of documents without insisting
for examination of witnesses.
4) x x x x "
(5) cria974.25
07. Looking to clause (3) of the above reproduced para, it is clear
that the Court while issuing notice can consider evidence of witnesses in
enquiry under section 202 of the Criminal Procedure Code. It is even
permissible for the Court to restrict the enquiry to examination of
documents without insisting for examination of the witnesses.
08. Considering all above, in the present case, this Court is
satisfied that the learned Trial Court has rightly passed order of issuance
of process. No illegality or perversity is pointed out in the impugned
order. This Court does not find any reason to cause interference while
exercising powers under section 482 of the Cr.P.C.
09. The Criminal Application, therefore, stands dismissed.
[KISHORE C. SANT, J.]
snk/2025/JUL25/cria974.25
