spb/- 1 26-7-3119-09.sxw IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL WRIT PETITION NO. 3119 OF 2009 Mr. Rashid Abubakar Khan .. Petitioner. Vs. Fahad Sami Qureshi & Anr. .. Respondents. ...... Mr. Vinit Jain for the Petitioner. . Mr. Vikas Singh for Respondent no. 1. Ms. A.T. Javeri, APP for the State. ...... CORAM : J.H. BHATIA, J. DATE : 26th JULY, 2010. P.C. 1 Heard the learned counsel for the parties. 2 The respondent no.1 filed a complaint under section 138 of the Negotiable Instruments Act against the present petitioner before the learned Metropolitan Magistrate, 7th Court, Bhoiwada, Mumbai on the ground that the petitioner had issued a cheque for an amount of Rs. 26 lakhs drawn on the bank of India, Naigaum Cross Road Branch, Mumbai. The cheque was to be presented for encashment if the payment is not spb/- 2 26-7-3119-09.sxw made on or before 15th February, 2008. As the payment was not made, the cheque was presented on 28.02.2008 to the drawee bank through bankers of the bank but the cheque was returned dishonoured on 3.3.2008. Notice was issued on 18.03.2008, demanding the amount and the notice was served on 25.03.2008 on the petitioner. Inspite of that the payment was not made within the statutory period. Hence, a complaint. 3 The petitioner/accused filed revision application, challenging the issuance of process. However, that revision application was rejected. The learned counsel for the petitioner contends that one day before the presentation of the cheque with the bank, in a civil suit filed by the petitioner against the respondents before this court, the learned Advocate for the respondent no.1 had admitted that an undated cheque was issued by the present petitioner and it was with the respondent but on the next date the cheque was presented, showing date as 28.02.2008 and it amounts to a forgery. He contends that service of notice on the drawer of the cheque is necessary and in this case, the complainant-respondent had given different addresses of the petitioner while the petitioner is residing at Navi Mumbai and the notice is not served on the petitioner. 4 As far as service of notice is concerned, in para-8 of the complaint it spb/- 3 26-7-3119-09.sxw is specifically mentioned that the notice was served through courier and there is acknowledgment of the service sent by the noticee i.e. the present petitioner. Whether notice was served or not is a question of fact which can be dealt with only when the case is taken up for trial. Under the provision of Negotiable Instruments Act inchoate cheque can be completed and presented. But if the undated cheque was issued more than six months before the presentation, whether the cheque could not be presented after expiry of six months from the date when it was handed over to the payee is also a question which can be looked into at the time of trial. Both the points raised by the petitioner are actually his defences. On the basis of the defence which is required to be proved at the time of trial, the process cannot be quashed. On perusal of the compliant, there is nothing to show that the trial court was wrong in issuing the process. Therefore, I find no substance in the present case. 5 For the aforesaid reasons, the petition stands dismissed. All the defences of the petitioner/accused are left open to be taken and decided at the time of the trial of the criminal proceedings. [ J.H. BHATIA, J.]