High Court · 2024
Legal Reasoning
1 revise 951-WP-226-2023.docIN THE HIGH COURT OF JUDICATURE AT BOMBAY,BENCH AT AURANGABADCRIMINAL WRIT PETITION NO. 226 OF 2023Smt. Meena w/o Shashikant Gole,aged 44 yrs. Occu : Nil,R/o Kaiwalya Residency H. No.10,Ganeshnagar, Dhayari, Pune 411041. ... PETITIONER (ORIG. ACCUSED)V E R S U S1.The State of Maharashtra,Copy to be served on LearnedPolice Prosecutor,Hon'ble High Court of Judicature of Bombay,Bench at Aurangabad.... FORMAL RESPONDENT2.Ashutosh s/o Vishnu Ratnaparkhe,aged 46 yrs. Occu : Business,r/o Desaipura, C/o Ramnikhil Desai,Nandurbar 425 412.... (Or. Comp.) RESPONDENTSWITHCRIMINAL WRIT PETITION NO. 232 OF 2023Smt. Meena w/o Shashikant Gole,aged 44 yrs. Occu : Nil,R/o Kaiwalya Residency H. No.10,Ganeshnagar, Dhayari, Pune 411041. ... PETITIONER (ORIG. ACCUSED)V E R S U S1.The State of Maharashtra,Copy to be served on LearnedPolice Prosecutor,Hon'ble High Court of Judicature of Bombay,Bench at Aurangabad.... FORMAL RESPONDENT2.Ashutosh s/o Vishnu Ratnaparkhe,aged 46 yrs. Occu : Business,r/o Desaipura, C/o Ramnikhil Desai,Nandurbar 425 412.... (Or. Comp.) RESPONDENTS
Legal Reasoning
2 revise 951-WP-226-2023.docWITHCRIMINAL WRIT PETITION NO. 233 OF 2023Smt. Meena w/o Shashikant Gole,aged 44 yrs. Occu : Nil,R/o Kaiwalya Residency H. No.10,Ganeshnagar, Dhayari, Pune 411041. ... PETITIONER (ORIG. ACCUSED)V E R S U S1.The State of Maharashtra,Copy to be served on LearnedPolice Prosecutor,Hon'ble High Court of Judicature of Bombay,Bench at Aurangabad.... FORMAL RESPONDENT2.Ashutosh s/o Vishnu Ratnaparkhe,aged 46 yrs. Occu : Business,r/o Desaipura, C/o Ramnikhil Desai,Nandurbar 425 412.... (Or. Comp.) RESPONDENTSWITHCRIMINAL WRIT PETITION NO. 234 OF 2023Smt. Meena w/o Shashikant Gole,aged 44 yrs. Occu : Nil,R/o Kaiwalya Residency H. No.10,Ganeshnagar, Dhayari, Pune 411041. ... PETITIONER (ORIG. ACCUSED)V E R S U S1.The State of Maharashtra,Copy to be served on LearnedPolice Prosecutor,Hon'ble High Court of Judicature of Bombay,Bench at Aurangabad.... FORMAL RESPONDENT2.Ashutosh s/o Vishnu Ratnaparkhe,aged 46 yrs. Occu : Business,r/o Desaipura, C/o Ramnikhil Desai,... (Or. Comp.)Nandurbar 425 412. RESPONDENTS-------------------------------------------------------------------------------------------Shri S. M. Kulkarni, Advocate for petitioner in all petitions.Ms. Pratibha J. Bharad, APP for respondent No.1-State in allpetitions.Shri R. R. Totala, Advocate for respondent No.2 in all petitions.------------------------------------------------------------------------------------------- 3 revise 951-WP-226-2023.docCORAM: SANJAY A. DESHMUKH, J.JUDGMENT RESERVED ON : 10/05/2024JUDGMENT PRONOUNCED ON : 21/06/20241.Rule. Rule made returnable forthwith.2.Heard learned advocates appearing for the respectiveparties.3.These writ petitions are filed for quashing of variousorders passed by learned Judicial Magistrate First Class,Nandurbar in the Summary Criminal Cases Nos.1010/2019,1011/2019, 1012/2019 and 1013/2019 registered under Section138 of the Negotiable Instruments Act (for short, "the N.I.Act").4.The petitioner moved various applications which arementioned below writ-wise. Those were rejected. The applicationsof the respondent No.2 for grant of interim compensation wereallowed. All those impugned orders are challenged in these writpetitions :-i)CRI. WRIT PETITION NO. 226 OF 2023An order passed below Exh.1 of issue process, Exh.35for production of statement of bank accounts of the respondentNo.2, Exh.36 for sending cheques to the Handwriting Expert forexamination of signature on disputed cheque, Exh.37 for 4 revise 951-WP-226-2023.docverification of signatures of the petitioner on each page ofagreement, Exh. 39 for merging and clubbing of all these cases forhearing together, Exh.21 discharge of the petitioner and fordismissal of complaint for want of jurisdiction. Exh.12 for grant ofinterim compensation to the respondent No.2 which was allowed.All above applications filed by petitioner were rejected.ii)CRI. WRIT PETITION NO. 232 OF 2023An order passed below Exh.1 of issue process. Exh.20for discharge of the petitioner and dismissal of complaint for wantof jurisdiction, Exh.31 for production of statement of bankaccounts of respondent No.2, Exh.32 for sending cheques to theHandwriting Expert for examination of signatures on it. Exh.33 forcomparing signature of the petitioner on cheque and each page ofthe alleged agreement by Court and Exh.12 for grant of interimcompensation.iii)CRI. WRIT PETITION NO. 233 OF 2023An order passed below Exh.1 of issue process, Exh.21for discharge of accused and for dismissal of complaint for want ofjurisdiction, Exh.32 for production of statement of bank accountsof the respondent No.2, Exh.36 for direction for merging andclubbing of all four cases and try them as one and same offence,Exh.32 for sending cheque to Handwriting Expert, Exh.33 for 5 revise 951-WP-226-2023.docexamination of signature on each agreement. Exh. 34 forcomparing signatures of petitioner on each page of the agreementby Court and Exh.12 for grant of interim compensation.iv)CRI. WRIT PETITION NO. 234 OF 2023 An order passed below Exh.1 of issue process, Exh.21for discharge of the petitioner and for dismissal of complaint forwant of jurisdiction, Exh.32 for production of statement of bankaccount of the respondent No.2, Exh.36 the direction for mergingall charges and clubbing four cases and to try them as one andsame offence, Exh.33 for sending cheque to Handwriting Expert,Exh.35 for verification of each signature of petitioner on each pageof the agreement by the Court and Exh.12 for grant of interimcompensation filed by the respondent No.2.5.The brief facts of all these cases are as under :-a)There were some money exchange transactionsbetween the petitioner and respondent No.2. The respondent No.2paid huge amount to the petitioner as hand loan. Three chequesdated 15/06/2019, 01/07/2019 and 15/07/2019 of Rs.3,80,000/-each and fourth cheque dated 20/08/2019 of Rs.3,00,000/- weregiven as security by the petitioner to the respondent No.2. Thosecheques were deposited in the Maharashtra Gramin Bank at 6 revise 951-WP-226-2023.docNandurbar for realization. That bank sent it to the Branch atDeopur, Dist. Dhule for processing. However, funds were notsufficient in the bank account of the petitioner and therefore,dishonored cheques were sent back to the respondent No.2 withcheque return memos.b)The statutory notices under Section 138 of the N.I. Actwere issued to the petitioner. The amount of those cheques werenot paid to the respondent No.2. Therefore, four differentSummary Criminal Cases were filed against a petitioner in theCourt of learned JMFC, Nandurbar. After hearing the respondentNo.2 and on perusal of the documents, learned Judicial MagistrateFirst Class, Nandurbar issued process against a petitioner in all thecases.6.A petitioner appeared in all cases and moved variousapplications as mentioned in para No.4 of this judgment. Thoseapplications filed by the petitioner were decided on merit andrejected. The respondent No.2 moved the applications for interimcompensation in each case and those were allowed.7.Learned advocate for the petitioner submitted that themoney transaction took place between the petitioner andrespondent No.2 at Pune. However, mischievously and in order to 7 revise 951-WP-226-2023.docharass the petitioner, these complaints are filed in the Court ofJMFC, Nandurbar. The Nandurbar JMFC Court has no jurisdictionto try these complaints cases. A petitioner is residing at Pune andnot at Nandurbar. The procedure as to inquiry as per Section 202of the Code of Criminal Procedure, 1973 (for short, the Cr.P.C.)was not followed by the learned JMFC, Nandurbar. The enquiry asper Section 202 of the Cr.P.C. is mandatory and without makingenquiry, the orders of issue process are illegal. He lastly submittedto allow all the writ petitions as all the orders passed againstpetitioner are illegal.8.Learned advocate for the petitioner is relying upon thefollowing authorities :-i]2023(1) Mh.L.J. 238 :[Sayed Mohammed Omair s/o Sayed Ibrahim Vrs. State of Maharashtra and another.]It is held that the Magistrate issued process withoutholding an enquiry or ordering the investigation under Section202 of the Cr.P.C. No reason is assigned by the Magistrate as towhy he restricted himself to examine the documents. Such order isnot sustainable. The matter was remanded to the Trial Court forholding enquiry under Section 202 of the Cr.P.C.ii]2007 CRI. L. J. 115 :[Ahuja Nandkishore Dongre Vrs. State of Maharashtra and another.] in which it is held as under :
Decision
8 revise 951-WP-226-2023.docThe jurisdiction of Court has to be gathered from theplace where money was intended to be paid. The Court at anotherplace within whose jurisdiction cheque was merely presented forrealization cannot be said to have jurisdiction to try the case.9.Learned advocate for the respondent No.2 submittedthat one writ petition is not maintainable against such manyimpugned orders passed in these different cases. The revisionswere not preferred against the orders of issue process, issue ofjurisdiction and interim compensation etc. All other orders arepassed with convincing and sound reasons. Those are legal andcorrect. No interference is warranted in the impugned orders. Helastly submitted to dismiss all the writ petitions. 10.Learned advocate for the respondent No.2 is relyingupon the following authorities :-i]2023 DGLS (Bom.) 4467[Mukund s/o Manohar Wazalwar Vrs. Eknath s/o Bajirao Hatwar (Dead) through his LRs Durwas Eknath Hatwar and others.] in which it is held that Section 239 of the Code of Criminal Procedure is not applicable to the Summary Proceedings under Section 138 of the Negotiable Instruments Act, 1881.ii]2021 SCC OnLine SC 1174[Sunil Todi and others Vrs. State of Gujarat and another.] 9 revise 951-WP-226-2023.docThe Magistrate having exercised his discretion, it wasnot open to the High Court to substitute its discretion in case ofissue process under Section 138 of the N.I. Act.11.Nobody will dispute the ratio laid down in the aboveauthorities cited on behalf of both sides. However, it is well settledthat each case has to be decided on its own merit and the facts ofeach case are decisive.12.Perused all the complaints, all applications along withimpugned orders passed on it. Perused grounds of objectionsraised in these petitions, an affidavit-in-reply and additionalaffidavit-in-reply filed by the respondent No.2.13.By the orders dated 22/11/2019, the learned TrialCourt issued process in all those cases. The inquiry under Section202 of the Cr.P.C. was not conducted. The remedy to file revision isavailable to the petitioner. However, revisions were not filedagainst said orders of issue process by the petitioner beforeSessions Court. The applications for quashing of the complaints u/s 482 of the Cr.P.C. are not filed. However, quashing is prayed inthe writ petitions. Therefore, directly filing of writ petitionsagainst the orders of issue process are not maintainable. 10 revise 951-WP-226-2023.doc14.The applications for discharge were filed by thepetitioner in each case. The said applications were notmaintainable under Section 239 of the Cr.P.C. as cases filed underSection 138 of the N.I Act are summary cases as held by this Courtin the case of Mukund s/o Manohar Wazalwar, cited supra. Theapplications filed for discharge of the petitioner are notmaintainable. The said applications were rightly rejected by theTrial Court. No interference is warranted in these orders.15.The applications filed by the petitioner for productionof statement of bank accounts of the respondent No.2 wererejected. These documents were required for hearing of dischargeapplication. The learned Trial Court observed and held that suchapplications can be moved later on and all applications can beconsidered when defence leads evidence at proper stage. Thepetitioner has ample opportunity to lead that evidence. The Courtcan also compare signatures on it under Section 73 of the IndianEvidence Act. The Court expressed that it will compare signature.It is surprising to note that once issuance of cheques is admitted bythe petitioner, how the signature on it can be challenged. There isno scope for interference in these well reasoned impugned orders.16.The applications filed for comparison and verification 11 revise 951-WP-226-2023.docof signature and Handwriting of the petitioner on disputedcheques and each of the page of agreement executed between thepetitioner and respondent No.2 were rejected. It is admitted factsthat cheques were issued as security. It means signatures areadmitted. It is matter of evidence. Those applications were filed tosupport the applications filed for discharge. The dischargeapplications were held not maintainable as discussed above. TheTrial Court held that petitioner - accused will have opportunity tolead evidence. Application is premature. Thus, petitioner can filethe application of same nature after the evidence of respondentNo.2 is over, if necessary. Further, Court can compare the signatureunder Section 73 of the Indian Evidence Act, 1872. Thoseapplications were rejected by the Trial Court by giving convincingreasons. The Trial Court has rightly exercised judicial discretionand interference is not warranted in the impugned orders.Therefore, well reasoned orders passed on those applicationsrequire no interference.17.The applications filed for merge of the charge andclubbing of all the cases together were rejected. The charges werenot framed in those cases. In summary cases, charge cannot beframed. It is only statement of accusation to be confronted to theaccused and not charge. Therefore, no question of merging of 12 revise 951-WP-226-2023.doccharge arises. Such applications are not maintainable. As perSection 408 of the Cr.P.C. the application must be moved beforethe Sessions Court for clubbing those cases. Those applicationswere also not maintainable before trial court.18.The applications were filed for dismissal of complaintfor want of jurisdiction. Those were rejected. However, thoseorders are not interlocutory. The revisions before Sessions Courtagainst the orders of Trial Court regarding issue of jurisdiction areto be filed. Those were not filed by the petitioner. In case ofrejecting the application challenging the jurisdiction of the court toproceed with the trial, even though it may not be final in onesense, is surely not interlocutory order, substantially it is a finalorder as held in the case of Jai Prakash Vrs. Radhey Shyam,reported in 1987 (2) Crimes 363, 368 (All). Further, an orderrejecting an application challenging the jurisdiction of the court toproceed with the trial is not interlocutory as held in the case ofMadhu Limaye Vrs. State of Maharashtra, reported in AIR 1978 SC47. The revisions against those orders were not filed in theSessions Court by the petitioner u/s 397 of the Cr.P.C. The writpetitions are not maintainable against the said orders. In case ofAhuja Dongre relied upon by the petitioner, the revision was filed 13 revise 951-WP-226-2023.docbefore the Sessions Court and that Judgment was challenged. Inthis case, revision is not filed. Thus, it is not helpful to thepetitioner. The revision is not filed. Therefore, case of SayedMohammed, cited supra by the petitioner is not relied upon.19.The applications for interim compensation in each casewere granted by the Trial Court by orders dated 05/12/2022. Allthese orders granting interim compensation passed u/s 143-A ofthe N.I. Act are well reasoned. There is no any illegality andperversity to interfere in it. The revisions were not preferredagainst those orders u/s 397 Cr.P.C. Therefore, the writ petitionsare not maintainable against those orders.20.In Writ Petition No. 226/2023, an application at Exh.42was filed for expeditious hearing of the case which was allowed.However, surprisingly that order is also challenged.21.As held above, no interference is warranted in any ofthe impugned orders. The judicial mind was applied by thelearned Trial Court while passing the orders with convincingreasons. There is no scope for interference in the discretion ofCourt. Therefore, all writ petitions deserve to be dismissed as heldabove. For the above reasons, the arguments of learned Advocate 14 revise 951-WP-226-2023.docfor petitioner are not accepted in all writs. All the writ petitionsare dismissed. However, considering the peculiar set of facts, itwould be proper to direct the parties to bear their own costs. [SANJAY A. DESHMUKH, J.]Choulwar