1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL WRIT PETITION NO. 935 OF 2010 Shri Ramkumar Sachanand Tejwani ...Petitioner vs. The Nashik Merchant Co-op.Bank Limited & Anr. ...Respondents Mr.Ashok B. Tajane for the Petitioner. Mrs.P.P. Bhosale, APP for the State. CORAM : V.M. KANADE, J. DATED : JULY 8, 2010 P.C. :- 1 Heard Counsel for the petitioner. None appears on behalf of the respondents though they are served. 2 The petitioner is challenging an order of issuance of process by the learned Magistrate on a complaint filed under Section 138 of the Negotiable 2 Instruments Act. 3 It is submitted that the learned Magistrate has not followed the procedure laid down under Section 200 of the Cr.P.C. and on the basis of affidavit in lieu of verification, process has been issued. He submitted that the Division Bench of this Court in the case of Maharaja Developers & Another v/s. Udaysing S/o. Pratapsinghrao Bhonsle & Anr., reported in 2007 ALL M. R. (Criminal) 1339 has held that issuance of process without complying provisions of Section 200 of the Cr.P.C. is illegal. It was submitted that the Division Bench also observed that the Magistrate is obliged and duty bound to examine on oath the complainant and the witnesses before issuance of process. He also invited my attention to the Roznama. He submitted that on 10th July, 2008, the Roznama reads as under :- Resumed Today. 3 Complainant and his Advocate present. Verification filed, Order below Exh.1. Issue process against accused on P.P. 4 I am afraid it is not possible to accept the submission made by the learned Counsel for the petitioner. There cannot be any doubt regarding the ratio of the judgment in the case Maharaja Developers (supra). However, in the present case, it appears that the verification was recorded by the Magistrate which is evident from the statement which is annexed at Exhibit-E page 51. It is no doubt true that the complainant appears to have filed an affidavit in lieu of verification which was also taken on record. Thereafter, however, the learned Magistrate recorded verification on 10th July, 2008. Merely because in the Roznama it is mentioned that verification is filed, no inference can be drawn that the learned Magistrate was pleased to issue process on the basis of the verification affidavit which was filed on 21st January, 2008 along with the complaint. Secondly, the complaint was filed in 4 2008, process was issued on 10th July, 2008 and now the complainant has filed his affidavit in lieu of evidence and is to be cross-examined, the plea of the petitioner has already been recorded and hence, at this stage, it is not possible to interfere with the order of issuance of process. 5 The petition, therefore, is dismissed. 6 At this stage, the learned Counsel for the petitioner seeks stay of this order. In my view, the present application has been filed only for the purpose of protracting the criminal trial which has already reached the stage of final hearing. Therefore, in my view, this is not a fit case for granting stay to this order. Application for stay is rejected. (V.M. KANADE, J.)