WP.1654-08 - 1 - VPH IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL WRIT PETITION No. 1654 OF 2008 Mr. Mohd. Akbar ...Petitioner Vs. State of Maharashtra & Anr. ...Respondents *** Mr. Rahul Kulkarni, for the Petitioner. Mr. P. S. Hingorani, APP for the Respondent-State. Mr. Manoj Patil i/b Mr. A. B. Vagyani, for Respondent No.2. *** CORAM: V. M. KANADE J. DATE : NOVEMBER 29, 2010 P.C. 1. By consent of parties, the writ petition is taken up for final hearing. The petition is aggrieved by the order of issuance of process passed by the learned J.M.F.C. Ichalkaranji, on a complaint filed by respondent No.2, for the offence punishable under S. 138 of the Negotiable Instruments Act. In the complaint it was alleged that towards the amount of Rs.10,75,772/- which was due and payable by the petitioner herein, he sent a cheque for Rs.20,000/- which was WP.1654-08 - 2 - dishonoured after the complainant deposited the same in in his bank. The learned counsel for the petitioner submitted that after the statutory demand notice was served on him, he had sent a demand draft of Rs.20,000/-, a copy of which is annexed at page 16 of the petition. He submitted therefore, that immediately after the demand was made, he had offered the said amount of Rs.20,000/- and therefore, the offence under S. 138 of the Act was not made out on the part of the petitioner due to sending the demand draft within the stipulated period of 15 days from the date of service of the notice. He also submitted that in the complaint, respondent No.2 has admitted that he had received the notice. 2. On the other hand, the learned counsel appearing on behalf of respondent No.2 submitted that the petitioner had sent the demand draft to the bank and the bank had returned the demand draft and therefore, there was non compliance of payment of the said amount within the stipulated period. In my view, at this stage it is not possible to consider this aspect since it is a disputed question of fact. The petitioner, therefore, will have to establish this fact during the trial and therefore, while exercising the jurisdiction under S. 482 Cr. P.C. and under Art. 227 of the Constitution of India, it will not be possible to interfere with the order of issuance of process. WP.1654-08 - 3 - 3. The question raised by the petitioner in this petition is kept open. The trial Court shall decide the same after evidence is led by both the parties. The writing petition is accordingly dismissed in above terms. [ V. M. KANADE J.]