Bombay High Court
Laxmichad Jethalal Shah vs State Of Maharashtra And Anr on 20 September, 2025
Author: N.J.Jamadar
Bench: N.J.Jamadar
2025:BHC-AS:39825
wp 4842 of 2025.doc
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CRIMINAL APPELLATE JURISDICTION
WRIT PETITION NO.4842 OF 2025
Laxmichand Jethalal Shah ... Petitioner
versus
The State of Maharashtra and Anr. ... Respondents
WITH
WRIT PETITION NO.4843 OF 2025
SWAROOP
SHARAD
PHADKE Laxmichand Jethalal Shah ... Petitioner
Digitally signed
by SWAROOP
versus
SHARAD PHADKE
Date: 2025.09.22 The State of Maharashtra and Anr. ... Respondents
20:38:43 +0530
WITH
WRIT PETITION NO.4849 OF 2025
Laxmichand Jethalal Shah ... Petitioner
versus
State of Maharashtra and Anr. ... Respondents
WITH
WRIT PETITION NO.4851 OF 2025
Laxmichand Jethalal Shah ... Petitioner
versus
The State of Maharashtra and Anr. ... Respondents
WITH
WRIT PETITION NO.4852 OF 2025
Laxmichand Jethalal Shah ... Petitioner
versus
The State of Maharashtra and Anr. ... Respondents
Mr. Dushyant Purekar i/by Ilsa S. Shaikh with Mr. Atharva Jagtap for
Petitioners.
Smt. R.S.Tendulkar, APP for State in WP Nos.4842 of 2025, 4843 of 2025 and
4851 of 2025.
Mr. Ashok Gawai, APP for State in WP No.4849 of 2025 and 4852 of 2025.
CORAM: N.J.JAMADAR, J.
DATE : 20 SEPTEMBER 2025
wp 4842 of 2025.doc
P.C.
1. Heard the learned Counsel for the parties.
2. These Petitions assail the legality, propriety and correctness of the
orders dated 22 July 2025 passed by the learned Metropolitan Magistrate, on
applications to de-exhibit the documents which have been marked in
evidence pursuant to assertions in the affidavits in lieu of examination-in-chief
of the complainant, in the complaints for the offence punishable under Section
138 of the Negotiable Instruments Act, 1881.
3. In the underlying complaint, in each of the petitions, the complainant
filed affidavit in lieu of examination-in-chief and list of documents. The
Petitioner - accused No.2 filed a statement of admission and denial of the
documents. By orders dated 9 October 2024, the learned Magistrate
exhibited the said documents purportedly in view of the averments in the
affidavits in lieu of examination-in-chief.
4. The Petitioner filed applications to de-exhibit the documents which were
not admitted in evidence by the petitioner, and direct the complainant to lead
oral evidence in proof of those documents. By the impugned orders, the
learned Magistrate was persuaded to reject the applications observing that, in
a complaint for the offence punishable under Section 138 of the N.I.Act, 1888,
it is not necessary to compel the complainant to lead further oral evidence
once affidavit in lieu of examination-in-chief is filed.
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5. Mr. Purekar, learned Counsel for the Petitioners, submitted that the
learned Magistrate has not ascribed any reason as to why documents were
marked, despite accused No.2 having denied those documents. It was
submitted that it was incumbent upon the Magistrate to deal with the
objections and pass a reasoned order. Reliance was sought to be placed on
the decision of a learned Single Judge of this Court in the case of Peacock
Industries Ltd. and Ors. V/s. Budhrani Finance Ltd. and Anr. 1, and a
decision of the Supreme Court in the case of Lachhmi Narain Singh and
Ors. V/s. Sarjug Singh and Ors.2.
6. The judgment of the Supreme Court in the case of Lacchmi Narain
Singh (supra) has no bearing on the controversy at hand. The judgment in
Peacock Industries (supra) is required to be considered in the context of
development in law. Under Section 145 fo the NI Act, 1881, notwithstanding
anything contained in the Code of Criminal Procedure, 1973, the evidence of
the complainant may be given by him on affidavit and may, subject to all just
exceptions, be read in evidence in any inquiry, trial or other proceeding in the
said Code. Under Section 146 of the NI Act, 1881, a bank slip or memo
denoting that the cheque has been dishonored is presumed to be prima facie
evidence of the fact of dishonor of the cheque. In the suo moto WP(Cri) No.2
of 2020, "Expeditious trial of cases under Section 138 of the NI Act, 1881"
1 2006(5) Mh.L.J. 162
2 (2022) 13 SCC 746
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while dealing with the inquiry under Section 202 of the Code in relation to
Section 145 of the NI Act, 1881, the Supreme Court clarified that if the
evidence of the complainant may be given by him on the affidavit there is no
reason for insisting on the evidence of the witnesses to be taken on oath. In
this view of the matter, if the affidavit in lieu of examination-in-chief is found
sufficient to prove the documents tendered in evidence by the complainant,
the complainant cannot be compelled to lead oral evidence.
7. I have perused the impugned orders and the affidavits in lieu of
examination-in-chief filed by the complainant, on the strength of which the
learned Magistrate has exhibited the documents. Prima facie, it appears that
there are adequate averments in the affidavits in lieu of examination-in-chief
in respect of each of the documents which have been marked as exhibits.
8. Mr. Purekar, learned Counsel for the Petitioners, made an endeavour to
urge that, few of the documents are demonstrably false. I am afraid, the
aforesaid submission can be considered at the stage of the marking of the
documents. The Petitioner - accused would have an efficacious opportunity
of cross-examining the complainant with regard to the genuineness and
veracity of the documents, which have been marked in evidence.
9. Moreover, the learned Magistrate has correctly recorded in the
impugned orders that, mere marking of a document as exhibit does not imply
that the document has been proved in evidence. The question as to whether
wp 4842 of 2025.doc
the documents have been duly proved in evidence, would be open for the
adjudication at the trial. Therefore, this Court finds that the impugned order
does not warrant any interference in exercise of the writ jurisdiction.
10. The Writ Petitions stand dismissed.
( N.J.JAMADAR, J. )
