- 1 - IN IN IN THE HIGH COURT OF JUDICATURE AT BOMBAY THE HIGH COURT OF JUDICATURE AT BOMBAY THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL CRIMINAL CRIMINAL APPELLATE JURISDICTION APPELLATE JURISDICTION APPELLATE JURISDICTION CRIMINAL CRIMINAL CRIMINAL WRIT PETITION NO.34 OF 2004 WRIT PETITION NO.34 OF 2004 WRIT PETITION NO.34 OF 2004 Shamsunder Ramchandra Kulkarni ...Petitioner vs. Babubali District Urban & Anr. ...Respondents Mr.A.A.Garge for the Petitioner Mr.Rahul Kulkarni i/b Mr.Uday Warunjikar for Respondent No.1. Ms.A.T.Jhaveri A.P.P. for State CORAM: CORAM: CORAM: A.S.OKA,J. A.S.OKA,J. A.S.OKA,J. DATE DATE DATE : JULY 23,2008 : JULY 23,2008 : JULY 23,2008 P.C.: P.C.: P.C.: 1. Heard the learned Advocate for the Petitioner and the Advocate for the first Respondent. The Petitioner has been arraigned as an accused in the complaint filed by the first Respondent under section 138 of the Negotiable Instrument Act,1881. The process was issued on the said complaint. The Petitioner purported to apply under section 245 of the Code of Criminal Procedure,1973 for discharge. The application for discharge was made on two grounds; first is that the Petitioner was not served with the statutory notice and second is that there has been an amicable settlement between the Petitioner and the first Respondent. The said application was rejected by the learned Judicial Magistrate (First Class). A Revision Application preferred by the Petitioner against the said order was dismissed by the Sessions Court. The challenge by the petitioner in this petition under Article 227 of Constitution of India read with section 482 of the said Code is to the aforesaid two orders passed by the learned Trial Judge and by the learned Additional Sessions Judge. 2. After process was issued in a complaint filed by the first - 2 - Respondent under section 138 of the said Act of 1881, an application for discharge could not have been entertained by the learned Judge. In any event the learned Judge could not have discharged the Applicant on the ground of alleged settlement. Therefore, it is difficult to find fault with the impugned order. 3. The learned Counsel or the Petitioner submitted that there has been an overall settlement between the Petitioner and the first Respondent and in terms of the said settlement, the Petitioner has deposited a sum of Rs.6,00,000/-. This case has not been accepted by the first respondent. There is a reply filed by the first Respondent for contesting the petition. It is stated in the reply that the case has reached the stage of recording of evidence. It is pointed out that the acknowledgment showing service of notice to the petitioner has been produced. 4. Therefore, it is not possible to accept the challenge to the legality and validity of the impugned orders. The petition is accordingly not entertained and the same is rejected. 5. If there is an amicable settlement between the parties, the rejection of the Writ Petition will not preclude the Petitioner from filing appropriate proceeding on the basis of the alleged settlement. It is also made clear that the deposit of amounts by the petitioner is naturally without prejudice to the rights and contentions of the Petitioner. - 3 - JUDGE JUDGE JUDGE