Bombay High Court
Amankumar S/O Suryakumar Sharma vs Santosh S/ O Vasantrao Deshmukh on 16 September, 2025
2025:BHC-NAG:9139
Judgment 58-Cr.WP-875-2023
1
IN THE HIGH COURT OF JUDICATURE AT BOMBAY :
NAGPUR BENCH : NAGPUR.
CRIMINAL WRIT PETITION NO.875 OF 2023
...
Amankumar S/o. Suryakishor Sharma,
Aged about- 27 years, Occupation-Service,
R/o. Barka Ganw, East Champaran,
Bihar-845 428.
... PETITIONER
--VERSUS--
Santosh S/o Vasantrao Deshmukh,
Aged about- 37 Years, Occupation- Professor,
R/o- Mauli Niwas, SBI Colony, Sahakar Nagar,
Gorakshan Rd, Akola, Tah. & Dist. Akola.
... RESPONDENT
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Mr. A.H. Mishra, Advocate for the Petitioner.
Mr. N.A. Parwani, Advocate for the Respondent.
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CORAM : M.M. NERLIKAR, J.
DATE : SEPTEMBER 16, 2025.
PIYUSH MAHAJAN
Judgment 58-Cr.WP-875-2023
2
ORAL JUDGMENT :
Heard.
2. Issue Rule, returnable forthwith. With consent of
learned counsel for the parties, the petition is taken up for final
disposal.
3. The present petition under Articles 226 and 227 of
the Constitution of India challenges the order dated
16/04/2022 passed by Judicial Magistrate, First Class, Court
No.8, Akola, and order dated 31/07/2023 passed by Additional
Sessions Judge, Akola, in Criminal Revision Petition
No.186/2022.
4. Brief facts are that the petitioner was employeed
with the respondent as an Assistant Lecturer in the coaching
class run by the respondent and accordingly petitioner and
respondent entered into an employment agreement dated
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Judgment 58-Cr.WP-875-2023
01/01/2021 along with certain terms and conditions. After six
months, the petitioner submitted his resignation, which was
accepted by the respondent on 30/07/2021. The petitioner
after 2.5 months from the date of resignation received a notice
dated 17/09/2021 from the advocate of the respondent
claiming an outstanding amount of Rs.3,20,000/- against the
petitioner on account of advances taken from the respondent
from time to time during the course of his employment. The
petitioner through his advocate replied to the said notice
thereby denying the claim. Thereafter, the respondent filed a
complaint under Section 138 of the Negotiable Instruments Act,
1881, read with Section 420 of the Indian Penal Code, 1860,
before the Court of Learned Judicial Magistrate, Akola, and it
was registered as Summary Case No.6527/2021. Accordingly,
the Learned Chief Judicial Magistrate, Akola, was pleased to
issue process against the petitioner. It appears that the
petitioner challenged the order dated 16/04/2022 of issue
process by filing Criminal Revision Application No.186/2022
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Judgment 58-Cr.WP-875-2023
before the Learned Sessions Judge, Akola, on the ground that
the order is passed without application of mind, as there is no
existing legal enforceable debt or other liability to be paid by
the present petitioner. The learned Revisional Court after
hearing the parties, dismissed the petition by its order dated
31/07/2023, and therefore, the present petition.
5. I have heard the learned counsel for the petitioner
and the learned counsel for the respondent. The learned
counsel for the petitioner vehemently submits that both the
Courts below have failed to take into consideration the relevant
documents on record. He has specifically relied on agreement
dated 01/01/2021 and submitted that Annexure-A which is
part and parcel of the agreement was not considered by both
the Courts, wherein, it is specifically mentioned that "All
Relevant documents + ONE blank Signed CHEQUE + ONE
MONTH salary will be deposited for security purpose. The
Cheque and Salary will be released at the time of termination
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Judgment 58-Cr.WP-875-2023
of service in the institute. An increment of 10-15% (based on
performance and feedback) will be raised in each session." He
submits that the black cheque which is mentioned in the said
Annexure-A was misused by the respondent, and therefore,
Court ought to have gone through the said Annexure-A. He
further submits that the respondent has suppressed the
material fact, as there was an agreement of employment
between the parties, and the blank cheque was issued by way
of KYC document during the course of employment, which has
been misused by the respondent/complainant, and therefore,
there is no material before the Learned Judicial Magistrate,
First Class, Akola, to issue process against the present
petitioner.
6. On the other hand, learned counsel for the
respondent submits that after going through the entire record,
the learned Magistrate has applied his mind and after following
due process of law, process was issued against the present
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Judgment 58-Cr.WP-875-2023
petitioner. He further submits that petitioner obtained advances
from the respondent to the tune of Rs.3,20,000/- excluding
salary, however, the petitioner left the services of the
respondent in breach of the agreement. Further he submits
that an amount of Rs.3,20,000/- was outstanding against the
petitioner and for that purpose petitioner has issued cheque
bearing No.189021 of Axis Bank, Washim dated 20/08/2021.
Accordingly, the respondent has presented the said cheque,
however, it was returned back along with the remark that
"Payment stopped by drawer", and therefore, the respondent
issued notice to the petitioner on 17/09/2021. As the petitioner
denied the claim of the respondent, therefore, he was
constrained to file the complaint under Section 138 of the
Negotiable Instruments Act read with Section 420 of the Indian
Penal Code. He further submits that both the Courts below
have rightly passed the order.
7. Upon careful perusal of the documents and both the
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Judgment 58-Cr.WP-875-2023
impugned orders, it appears that the order of issue of process
passed by learned Judicial Magistrate First Class, Court No.8,
Akola, is passed after following the procedure laid down under
Section 138 of the Negotiable Instruments Act. The order
depicts that the learned Magistrate perused the contents of the
complaint and documents accompanying it, so also, verification
of complaint. Not only that, as the accused is residing outside
the jurisdiction of the Court, an enquiry was conducted as per
Section 202 of the Cr.P.C. and prima facie it was found that the
offence is disclosed, and therefore, process was issued against
the accused for the offence punishable under Section 138 of the
Negotiable Instruments Act.
8. It would be necessary to consider the parameters for
issuance of process to be followed by the Magistrate. From the
catena of judgments, the parameters are settled those are,
there should be a prima facie case, and sufficient grounds for
proceedings so also there should be application of mind,
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Judgment 58-Cr.WP-875-2023
however, no detail reasoning is required. Therefore,
considering these parameters, whether the Magistrate is
justified in issuing the process or not, is the moot question. It
seems from the complaint filed by the respondent that an
amount of Rs.3,20,000/- was outstanding against the petitioner
and for that purpose the petitioner has issued Cheque bearing
No.189021 of Axis Bank and when the said cheque was
presented, it was returned back with remark that "Payment
stopped by drawer". Accordingly, the notice was issued on
17/09/2021, which was received by the petitioner on
24/09/2021. The said notice was replied by the petitioner,
however, as the petitioner failed to return the cheque amount
to the complainant within 15 days from the date of receipt of
the notice, a complaint came to be filed. Therefore, the
ingredients of Section 138 are prima facie satisfied. As was
argued by the learned counsel for the petitioner that the clause
in the Annexure-A of the agreement ought to have been
considered by the Learned Judicial Magistrate, First Class,
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Judgment 58-Cr.WP-875-2023
Akola, before issuing the process is nothing but a defense which
was to be taken at the time of trial. As can be seen from the
observations of Revisional Court in Para 9 of the impugned
judgment and order dated 31/07/2023 that "petitioner has
raised defence of misuse of cheque given by him to the non-
applicant with submissions that it was the blank undated and
signed documents. As such, it is specific defence which is
required to be considered on merits by giving opportunity to
both parties during the stage of trial and evidence whereas it
would be primarily presumption under Section 118 as well as
Section 139 of the NI Act regarding drawing of cheque by the
petitioner and for legal liability towards the complaint. The
details of transaction between the parties is always the subject
matter of the trial and it cannot be ascertained at the stage of
issuance of process."
9. Therefore, while issuing the process, it is necessary to
see that, there is prima facie case and sufficient ground to
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Judgment 58-Cr.WP-875-2023
proceed. There should also be application of mind by the Court.
Upon perusal of both the orders and documentary evidence, I
am satisfied that both the Courts below have taken into
consideration the above settled parameters and have applied
their minds to the facts of the present case. Therefore, the
arguments advanced by the learned counsel for the petitioner
that clause in respect of one blank signed cheque ought to have
been considered by the Courts below, is nothing but a defence
which was to be agitated at the time of trial, and therefore, no
case is made out for interference in both the impugned orders.
Hence, the petition is dismissed. Rule stands discharged.
[ M. M. NERLIKAR, J ]
PIYUSH MAHAJAN
