1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELATE JURISDICTION CRIMINAL APPLICATION NO.2939 OF 2001 Sudhir Sarnobat ...Applicant vs. 1 Girish M.Kulkarni 2 State of Maharashtra ...Respondents Mr.Prashant Badole for the applicant Ms S.V.Gajre A.P.P. For State CORAM :A.S.OKA,J. DATE : JUNE 8, 2009 JUDGMENT: 1 Heard the learned counsel for the applicant. The applicant has been arraigned as an accused in a complaint filed by the first respondent alleging offene under section 138 of the Negotiable Instruments Act,1881 (hereinafter referred to as the said Act ). According to the case of the first respondent, the applicant had placed an order for printing information brochure relating to Lake View Colony at Jawhar. According to the first respondent he carried out printing job and issued a bill. According to the first respondent the applicant issued a cheque in the sum of Rs.32,600/- towards payment of bill. The said cheque was dishonoured and thereafter the present complaint has been filed. 2 On the said private complaint, the learned 2 Magistrate issued process for the offence under section 138 of the said Act. On 11 th May 1999 the applicant made an application seeking discharge on the ground that the cheque in question was not signed by him and that he does not have any account with North Canara G.S.B Cooperative Bank Ltd. on which the cheque has been allegedly drawn. By order dated 2 nd November 1999, the said application was rejected by the learned Magistrate by observing that the applicant did not reply to the demand notice. The learned Judge observed that whether the applicant has signed the cheque or not is the question which can be decided after the evidence is adduced by the parties. 3 The learned counsel for the applicant invited my attention to the order dated 28 th February 2001 by which the application made by the first respondent under section 259 of the Code of Criminal Procedure,1973 (hereinafter referred to as the said Code) was allowed. He pointed out that by the said order, the case has been ordered to be tried as a warrant case. He submitted that the application for discharge ought to have been considered on merits. He submitted that the learned Judge has committed an error by rejecting the said application 4 I have considered the submissions. In the complaint filed by the first respondent there is an averment that printing job was carried out by the first respondent for 3 the benefit of the applicant. The averment in the complaint is that towards payment of bill, the cheque in dispute was drawn by the applicant. The contention of the applicant in the discharge application is that he has not drawn cheque and the account on which the cheque is drawn is not his account. According to the case made out in the complaint, after dishonour of the cheque, notice date 28 th October 1997 was issued by the Advocate for the first respondent and the said notice which was sent by R.P.A.D. Was received by the applicant. According to the first respondent, though the notice was received by the applicant, there was no reply to the said notice by the applicant and there was no compliance with the demand made by the said notice. 5 When the application for discharge was made, there was no order passed by the learned Magistrate under section 259 of the said Code and the said order was passed on 20 th February 2001. 6 The complaint as it stands makes out a case of commission of offence under section 138 of the said Act. Whether the applicant had drawn the said cheque or not is a question which can be decided after the evidence is adduced by the complainant and therefore, the learned Magistrate was justified in rejecting the application for discharge at the stage at which the said application was made. Admittedly, the evidence has not been adduced by 4 the first respondent-complainant. Therefore, it is difficult to find fault with the impugned order. However, the contentions raised by the applicant in the application for discharge will have to be considered at an appropriate stage after the evidence is adduced in support of the complaint. If the case has been converted into a warrant triable case, the applicant can always make appropriate application in accordance with law at appropriate stage for raising the said contentions. 7 Subject to what is observed above, no case is made out for interference at this stage. Application is accordingly rejected. The contentions raised by the applicant are expressly kept open. JUDGE