: 1 : SD IN THE HIGH COURT OF JUDICATURE AT BOMBAY IN THE HIGH COURT OF JUDICATURE AT BOMBAY IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL APPELLATE JURISDICTION CRIMINAL APPELLATE JURISDICTION CRIMINAL WRIT PETITION NO.1901 OF 2008 CRIMINAL WRIT PETITION NO.1901 OF 2008 CRIMINAL WRIT PETITION NO.1901 OF 2008 Sandeep R. Gala ... Petitioner V/s. The State of Maharashtra & Anr. ... Respondents ALONGWITH ALONGWITH ALONGWITH CRIMINAL WRIT PETITION NO.1902 OF 2008 CRIMINAL WRIT PETITION NO.1902 OF 2008 CRIMINAL WRIT PETITION NO.1902 OF 2008 ALONGWITH ALONGWITH ALONGWITH CRIMINAL WRIT PETITION NO.1903 OF 2008 CRIMINAL WRIT PETITION NO.1903 OF 2008 CRIMINAL WRIT PETITION NO.1903 OF 2008 ALONGWITH ALONGWITH ALONGWITH CRIMINAL WRIT PETITION NO.1904 OF 2008 CRIMINAL WRIT PETITION NO.1904 OF 2008 CRIMINAL WRIT PETITION NO.1904 OF 2008 ALONGWITH ALONGWITH ALONGWITH CRIMINAL WRIT PETITION NO.1905 OF 2008 CRIMINAL WRIT PETITION NO.1905 OF 2008 CRIMINAL WRIT PETITION NO.1905 OF 2008 Sandeep R. Gala & Anr. ... Petitioners V/s. The State of Maharashtra & Anr. ... Respondents Mr.R.S. Mohite a/w. Mr.R.S. Shekhawat for the Petitioners. . Mr.S.V. Marvadi i/b. M.D. Mali & Co. for Respondent No.2. CORAM : ABHAY S. OKA, J. CORAM : ABHAY S. OKA, J. CORAM : ABHAY S. OKA, J. DATE : 21ST APRIL, 2009. DATE : 21ST APRIL, 2009. DATE : 21ST APRIL, 2009. P.C.: P.C.: P.C.: 1. Heard the learned Counsel appearing for the petitioners and the learned Counsel appearing for the second respondent. The petitioner in Writ Petition No.1901 of 2008 and the petitioners in Writ Petition Nos.1902 of 2008 to 1905 of 2008 have been arraigned as accused in the complaint filed by the second respondent alleging commission of offence under Section 138 of the Negotiable Instruments Act, 1881 (hereinafter referred to as "the said Act"). The submission of the learned Counsel appearing for the : 2 : petitioner which is common in all these petitions is that going by the averments made in the complaint, the cheques were allegedly issued in discharge of a debt which was barred by limitation on the date on which the cheques were issued. The second contention which is common to all petitions is that the cheques subject matter of the complaints were issued by way of security and therefore complaints based on such cheques for offence under Section 138 of the said Act will not be maintainable. The learned Counsel submitted that in so far as Writ Petition Nos.1902 of 2008 to 1905 of 2008 are concerned, petitioner No.2 could not have been arraigned as accused in the complaint filed by the second respondent. 2. The learned Counsel appearing for the second respondent, on instructions, states that the second respondent does not desire to prosecute the complaint against the second petitioner in Writ Petition Nos.1902 of 2008 to 1905 of 2008. 3. I have considered the submissions. Whether the cheques in question have been issued in discharge of a debt which was time barred can be decided only after the parties adduce evidence. Only on the basis of averments made in the complaint, the issue : 3 : regarding bar of limitation cannot be decided. As far as the second contention is concerned, it is the defence of the petitioners to the complaints and the said defence will have to be established in accordance with law. Therefore, on these two grounds, order issuing process cannot be quashed at this stage. 4. The statement made by the learned Counsel appearing for the second respondent is accepted and consequential order will have to be passed on the basis of the said statement. 5. Hence, I pass the following order : "O R D E R" "O R D E R" "O R D E R" (i). Criminal Writ Petition No.1901 of 2008 is dismissed. However, all contentions raised by the petitioner are expressly kept open. (ii). Writ Petition Nos.1902 of 2008 to 1905 of 2008 are partly allowed. The orders of issue of process as against the second petitioner stand quashed and set aside. All contentions raised by the first petitioner in these petitions are expressly kept open. : 4 : (iii). Petitions are disposed of in above terms. [ABHAY S. OKA, J.] [ABHAY S. OKA, J.] [ABHAY S. OKA, J.]