Bombay High Court
Korji Damji Partnership Firm And Others vs Kusum Motichand Vora on 18 June, 2025
2025:BHC-NAG:5657
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH : NAGPUR
CRIMINAL WRIT PETITION NO. 415 OF 2025
1. Korji Damji, Partnership Firm, 21,
Anupama, 2nd Floor, Shivam Society,
Devidayal Road, Mulund [West]
Mumbai 80, Through its Partners.
2. Narsi Premji Kothari,
3. Piyush Narsi Kothari,
4. Samir Narsi Kothari,
No. 2 to 4 resident of 1801, Balaji
Krupa, 18th Floor, Beside Upasane
Hospital, LBS Marg, Mulund West,
Mumbai-80. PETITIONERS
Versus
Kusum Motichand Vora,
Aged Adult, Occ. Business,
Through Power of Attorney,
Harsh Motichand Vora,
Aged Adult, Occ. Business,
R/o Akola, Tq. & Dist. Akola. RESPONDENT
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Mr. J.B. Gandhi, Advocate for the Petitioners.
Mr. R.R. Dawada, Advocate for the Respondent.
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CORAM : URMILA JOSHI PHALKE, J.
DATED : 18th JUNE, 2025.
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ORAL JUDGMENT :-
1. Heard.
2. Rule. Rule made returnable forthwith.
3. Heard finally by the consent of learned Counsel for
the rival parties.
4. By this Writ Petition, the Petitioner had challenged
the order passed below Exhs. 190 and 191 by which the
opportunity to issue the summons to the witness was refused to
the petitioners and praying to set aside and quash the said
orders and direction to issue fresh summons or bailable warrant
to the said witness.
5. The Brief facts which are necessary for the disposal
of the Writ Petition are as under:
5(i). The Petitioner is the original accused against whom
the criminal complaint SCC No. 3194/2020 is filed. On an
allegation that Respondent who is the original complainant who
is the resident of Akola and accused No.1 is the partnership firm
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and accused Nos. 2 to 4 are the partners who are inter related
and looking after the day to day affairs of the said firm.
5(ii). The amount of Rs. 25 Lakhs was deposited by the
complainant with the firm by cheque drawn on Bank of India. It
is further alleged that, it was acknowledged by executing the
receipt on 21.10.2013 in favour of Respondent No.1. It is also
alleged that the said amount was to be repaid on demand with
interest at the agreed rate. The Petitioner issued the cheque
dated 19.08.2020 for the amount of Rs. 25 Lakhs drawn on the
Union Bank of India in favour of the Respondent who is the
original complainant with assurance that it shall be honoured
on presentation. The cheque was presented by the complainant
in his bank but it was dishonoured on account of insufficient
funds, and therefore, the notice was issued and the complaint
has been filed against the present Petitioner. On hearing the
complainant the process was issued on 12.01.2024. On issuance
of the process the present Petitioner appeared through his
Counsel. The plea was recorded and thereafter both the parties
were directed to adduce the evidence. Accordingly, the
complainant has adduced the evidence. The defense of the
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present Petitioner that the complainant is running the money
lending business and running business without holding a valid
license under the Maharashtra Money-Lending (Regulation) Act,
2014, and therefore, the Petitioner applied for issuance of
summons to the witness after recording his statement under
Section 313 of Cr.P.C. The said permission was granted to the
present Petitioner but after granting permission and after
sufficient opportunity the Petitioner could not adduce the
defence evidence, and therefore, his evidence was closed and
the application for issuance of summons to the witness is
rejected.
5(iii). Being aggrieved and dissatisfied with the same, the
present Writ Petition is filed by the Petitioner on the ground that
the original complainant/Respondent is indulged in the illegal
activity i.e. the money lending business and there are several
victims at the hands of the present Respondent, and therefore,
the Petitioner is intending to examine one of the witness who is
a victim at the hands of the complainant. Therefore, the
application was filed after recording the statement of the
petitioner under Section 313 of Cr.P.C.
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5(iv). The witness summons was issued to Uma Medical
Agency who is proprietor which was not served. Thereafter time
and again the opportunity was granted to the present Petitioner
to examine the witness but the present Petitioner could not
secure the presence of the said witness, and therefore, the
evidence of the present Petitioner was closed and permission
was not granted.
6. On perusal of the order passed by the Additional
Chief Judicial Magistrate Court-7 Akola, it reveals that the
complainant has resisted the application on the ground that the
application amounts of mockery of law and abuse of process of
law. No directions of this Court are fulfilled by the accused
persons i.e. the Petitioner and time and again the opportunities
are granted to the present Petitioner but the present Petitioner
has not take any steps to secure the presence of the witnesses,
and therefore, the said opportunity cannot be granted to the
present Petitioner.
7. The order discloses that the statement under Section
313 of Cr.P.C. of the accused persons was recorded on
04.02.2025 since then the matter is for the defence evidence.
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The evidence of DW-1 was recorded by producing the copy of
deposition in S.C.C. No. 1282/2022. Summons witness
mentioned in the application was issued but the report received
twice that the witness is not residing on the given address. Since
then, the defence Counsel has not produced or submitted the
new address and the matter is held up on the said stage. There
are directions of the Appellate Court to decide this matter as
early as possible. On giving sufficient opportunities for
recording the evidence of defence witnesses the Petitioner has
not taken any steps. Even no proper address is provided to the
Court to issue the summons. In all 18 dates are given to the
present Petitioner.
8. The roznama obtained through E-Court services is
also placed on record by the learned Counsel for the
Respondent which also substantiates the contention that despite
sufficient opportunity is granted the Petitioner failed to secure
the presence of the witnesses. Thus, considering the order
passed by the Additional C.J.M. Court No. 7 Akola and
considering the roznama it reveals that after sufficient
opportunity the Petitioner failed to adduce the evidence and no
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plausible reason is put forth before the Court to give him an
opportunity. The conduct of the present Petitioner itself is
sufficient to show that he has contributed for abusing the
process of law.
9. Considering the entire record, no case is made out
to interfere with the said order. In view of that, the Writ Petition
deserves to be dismissed.
10. Accordingly, Writ Petition is dismissed. No cost.
11. Rule is discharged.
12. Pending application/s, if any, shall stand disposed of
accordingly.
( URMILA JOSHI PHALKE, J.)
S.D.Bhimte
Signed by: Mr.S.D.Bhimte
Designation: PA To Honourable Judge
Date: 19/06/2025 18:43:46
