1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELATE JURISDICTION CRIMINAL WRIT PETITION NO.2419 OF 2008 Shankar K. Shettigar ...Petitioner vs. Mrs.Pushpa S.Shettigar The State of Maharashtra ...Respondents Mr.A.S.Khandeparkar i/b Mr.S.J.Khera for the petitioner Mr.Dinesh Mota for the respondent Mr.Y.M.Nakhawa A.P.P for State. CORAM :A.S.OKA,J. DATE : JULY 1, 2009 P.C. 1 The submissions of the learned counsel for the petitioner were heard yesterday. On the prayer made by the learned counsel for the petitioner, the order was not passed yesterday as he was desirous of taking instructions as to whether the petitioner desires to withdraw the petition. Today, the Advocate for the petitioner states that the petitioner does not desire to withdraw the petition and hence, the court may pass appropriate order. 2 The first respondent is the original complainant. The first respondent filed a complaint under section 138 of the Negotiable Instruments Act,1881 (hereinafter referred to as the said Act). The petitioner has been arraigned as an accused in the said complaint. 3 It will be necessary to refer the averments made in the complaint. The complaint itself discloses that the first respondent is related the petitioner. The case is that a friendly loan was advanced by the first respondent to the petitioner and writings were executed 2 by the petitioner. Reliance is placed on the writings. The case in the complaint is that post dated cheques were issued by the petitioner and the said cheques were dishonored. Thereafter, the present complaint has been filed by the first respondent. Process was issued on the said complaint. Charge was framed. Application for discharge made by the petitioner was rejected. A revision application was filed against the said order which came to be rejected. Thereafter, the petitioner filed a revision application for challenging the order of issue of process which has been rejected. 4 The learned counsel for the petitioner has taken me through the complaint and other documents on record. In invited my attention to various writings which are relied upon by the first respondent complainant. He submitted that even going by the case of the first respondent, cheques have been issued by the petitioner on behalf of a limited company and the said company has not been shown as accused. He submitted that without arraigning the company as an accused, the complaint could not have been filed. He submitted that the alleged monetary claim on the basis of which the complaint was filed was barred by limitation on the date on which alleged cheques were issued. He submitted that the claim made by the first respondent for interest at the rate of 3% p.a is against the provisions of law. He submitted that the drawer of two cheques was a firm and the drawer of remaining cheques was a limited company. He submitted that the cheques subject matter of the complaint have been drawn on two different legal entities and therefore, notice of demand itself is illegal. He invited my attention to the notice of demand and submitted that apart from the fact that the notice is otherwise illegal, the demand made by the notice is for a lesser amount than the amount 3 representing cheques. He submitted that considering the fact that all these inherent defects go to the root of the matter, the complaint deserves to be quashed. He submitted that the revision application was decided without giving proper opportunity of being heard to the petitioner. 5 I have given careful consideration to the submissions. I have allowed the learned counsel for the petitioner to argue the case on merits of the complaint and therefore, it is not necessary to consider the last contention raised regarding the failure of the sessions Court to give proper hearing. 6 As of today,it is not in dispute that the petitioner is the signatory to the cheques. Even if the company or firm on whose account the cheques are drawn are not arraigned as accused, the complaint is always maintainable against the petitioner as he is the signatory to the cheque. The issue whether the debt was time barred cannot be decided at this stage and it is the matter of evidence. As far as demand notice is concerned, it is clearly set out in the demand notice that the cheques were dishonored and therefore, the petitioner has been called upon to pay the requisite amount. It was tried to be submitted that there are no material averments in the complaint as required by section 141 of the said Act. However, it must be noted that the petitioner is admittedly the signatory to the cheque and therefore, it was not necessary to make such averments. 7 What has been argued in the petition constitutes the defence of the petitioner to the complaint. On plain reading of the complaint, offence under section 138 of 4 the Negotiable Instruments Act,1881 was made out. Therefore, no interference can be made at this stage with the order of issue of process. There is one more aspect which needs to be noted. The complaint runs into six pages. However, the Memorandum of Petition itself runs into 89 pages. There are 90 ground taken in the petition. There was no reason to file such a bulky petition. 8 The Petition is rejected. It is, however, made clear that all contentions raised by the petitioner in the complaint are expressly kept open. JUDGE