1 criwp1129 ssp IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELATE JURISDICTION CRIMINAL WRIT PETITION NO.1129 OF 2010 Kailash Agarwal & Anr. ...Petitioners vs. State of Maharashtra & Ors. ...Respondents Mr.Prakash Naik with Mr.Ameya Gokhale i/b Khaitan& Co. for the Petitioner Mr.Ramesh Jain for the respondent no.2 Mr.A.R.Patil, A.P.P for respondent no.1 CORAM : A.S.OKA,J. DATE : SEPTEMBER 14, 2011 P.C.: 1 Heard the learned counsel for the petitioners and the learned counsel for the respondent no.2. Prayer made in this petition under Article 227 of the Constitution of India is for quashing the proceedings of the complaint filed by the respondent no.2, in the Court of Metropolitan Magistrate at Mumbai alleging commission of offence under section 138 r/w section 142 of the Negotiable Instruments Act,1882. The process was issued by the learned Metropolitan Magistrate on the basis of the complaint filed by the respondent no.2. 2 There are two submissions canvassed by the learned counsel for the petitioners. The first submission is that the averments made in the complaint were not sufficient for issuing process 2 criwp1129 and second submission is about non compliance with the amended provision of sub section 1 of section 202 of Code of Criminal Procedure,1973 as amended by Act no.25 of 2005. As far as second contention is concerned, there are conflicting views taken by the learned Single Judges of this Court. I am informed that the issue whether the amended provision is directory or mandatory has been referred to the Larger Bench of this Court and the said issue has not been decided. 3 Considering this situation, the learned counsel for respondent no.2 on instructions states that instead of keeping the petition pending in this Court, by setting aside the order issuing process, the learned Metropolitan Magistrate be directed to comply with the amended provision. 4 The prayer made by the learned counsel for respondent no.2 is reasonable. The said prayer will have to be accepted. As the order issuing process is required to be set aside, it is not necessary to consider the first contention raised by the petitioners as all the aspects will have to be examined by the learned Metropolitan Magistrate. 5 Hence, I pass the following order : i) Order passed by the learned Metropolitan Magistrate dated 2nd January 2009 is quashed and set aside. ii)The learned Magistrate shall follow the provisions of sub section 1 of section 202 of 3 criwp1129 the Code of Criminal Procedure,1973 by postponing the issue of process against the accused. The learned Magistrate will proceed with the complaint in accordance with law. iii)The learned Metropolitan Magistrate will pass a formal order in accordance with sub section 1 of section 202 of the said Code on production of an authenticated copy of this order. iv)All contentions of the parties on merits are kept open. v) Petition is disposed of on above terms with no order as to costs. JUDGE