cwp814.09 1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY, BENCH AT AURANGABAD CRIMINAL WRIT PETITION NO. 814 OF 2009 Vivek s/o Natrao Manathkar age 33 years, occ. contractor r/o Shardha Colony, Bhavityanagar Wadi (Bk), Tq. & Dist. Nanded. .. PETITIONER VERSUS 1 The State of Maharashtra 2 Vijay s/o Padmanabhrao Kashikar age 29 years, occ. Prop. of Kashikar Construction r/o Ravinagar, Jangamwadi Nanded. .. RESPONDENTS Mr. P.G. Godhamgaonkar, advocate for the petitioner. Mr. K.S. Patil, APP for the State. Mr. P.R. Katneshwarkar, advocate for respondent no. 2. ===== CORAM : A.V. POTDAR, J. DATE : 17 th August, 2011 ORAL JUDGMENT : 1 By present writ petition under Article 226 and 227 of the Constitution of India, the petitioner / original accused no. 1 has approached this court for the prayer in terms of prayer clause ‘B’ which reads thus : cwp814.09 2 B By issue of a writ of certiorari and/ or any other appropriate writ, order or directions, the impugned judgment dated 14-8-2009 in Criminal Revision Petition no. 124/2008 passed by the Sessions Judge, Nanded at Exhibit “A” above be quashed and set aside, holding that, the interpretation drawn by the learned Sessions Judge of Section 138 and 139 to impute liability to the person not a drawer of a cheque is bad. 2 Heard learned counsel for the petitioner / original accused no. 1, learned APP for the State and learned counsel for respondent no. 2 / original complainant. Facts in brief, which give rise to this writ petition can be summarised as under : . Respondent no. 2 filed complaint before the Judicial Magistrate First Class, Nanded for offence under section 138 of the Negotiable Instrument Act r/w section 420 of the Indian Penal Code against the petitioner who is arrayed as original accused no. 1 and his wife arrayed as accused no. 2. It is contended in the said complaint that complainant is doing business of supply of construction material. It is alleged in the said complaint that petitioner / original accused no. 1 and his wife are engaged in construction business and doing their business from their residential premises at Shivaji Nagar, Nanded. Accused no. 2 is having bank account with Bhagyalaxmi Mahila Sahakari Bank Ltd. Branch Shivajinagar, Nanded, in his name to satisfy cwp814.09 3 the claims and liability of payment of business. Complainant is also doing business of supply of construction material under the name and style “Kashikar Construction”. There are business transactions between petitioner, his wife and respondent no. 2 / original complainant. There are certain dues to the tune of Rs. 1,75,000/- for supply of construction material towards the contract taken by petitioner and his wife. Apart from this transaction, certain handloan is provided by respondent no. 2 to the petitioner of which particulars are given in paragraph no. 5 of the complaint. It is further alleged that towards supply of construction material, dues were to the tune of Rs. 1,75,000/- and towards handloan, dues were to the tune of Rs. 96,500/-. Due to pursuation at the hands of respondent no. 2, cheque dated 19-7-2007 was issued by wife of the petitioner which was handed over by the petitioner to respondent no. 2. The cheque was drawn on the account stood in the name of wife of the petitioner in Bhagyalaxmi Mahila Sahakari Bank, Shivajinagar, Nanded. The cheque was presented in the bank on 14-11-2007 which was returned on 15-11-2007 with endorsement from the bank as “stopped payment”. Due to this act of the petitioner and his wife, complaint came to be filed in the court of Chief Judicial Magistrate, Nanded on 29-1-2008. After recording of verification, learned Judicial Magistrate First Class, Nanded, to whom the complaint was assigned, issued cwp814.09 4 order of dismissal of complaint against present petitioner and ordered to issue summon only on original accused no. 2, for offence punishable under section 138 of the Negotiable Instrument Act. 3 Being aggrieved by the order of dismissal of complaint against accused no. 1 and issuance of process against accused no. 2 for offence punishable under section 138 of the Negotiable Instrument Act only and not under section 420 of the Indian Penal Code, respondent no. 2 / original complainant preferred Criminal Revision No. 124/2008 before the learned Sessions Judge, Nanded. It further appears that said revision came to be allowed by judgment and order dated 14-8-2009 which is impugned before this court. 4 During the course of submissions across the bar, learned counsel for the petitioner drew my attention towards the text of section 138 of the Negotiable Instrument Act and the facts pleaded particularly in paragraph no. 7 of the petition. My attention is drawn towards the undisputed facts from the averments in the complaint that there is no averment in the complaint that the cheque drawn on 19-7-2007 was signed by the present petitioner. There is no averment that the cheque was drawn in the account cwp814.09 5 stood in the name of the petitioner and the petitioner is not the drawer of the cheque. By drawing my attention towards these three facts, it is urged that considering the definition of the offence covered under section 138 of the Negotiable Instrument Act, for the lack of averments in the complaint that the petitioner is not the drawer of the cheque, the cheque was not drawn in his account towards discharge of debt, the order passed by the learned Judicial Magistrate First Class, Nanded, refusing to issue process is a correct order and the revisional court has committed an error in allowing the revision application. 5 Per contra, it is urged across the bar by learned counsel appearing for respondent no. 2 that considering the averments pleaded in the complaint, the complaint was not restricted for an offence under section 138 of the Negotiable Instrument Act but also for alleged offence under section 420 of the Indian Penal Code. For the observations of the revisional court particularly in paragraph nos. 12 and 13 where reasons are quoted, the court not only dealt with the requirements for offence to be constituted under section 138 of the Negotiable Instrument Act but also considered the ingredients of the offence under section 420 of the Indian Penal Code. cwp814.09 6 6 While considering the question of issuance of process, the court is required to consider the averments in the complaint. No doubt, as the averments in the complaint are so mixed together with the ingredients of the offence under section 138 of Negotiable Insrument Act and the ingredients of offence under section 420 of the Indian Penal Code, the question requires to be decided at the time of trial. When this court expressed this view, learned counsel for the petitioner requested the court to make the fact clear whether the case to be conducted before the lower court as a summary case or it be treated as warrant case as the cases for offence under section 138 of the Negotiable Instrument Act are to be tried as summary case while the cases under section 420 of the Indian Penal Code are to be tried as warrant cases. The averments in the complaint satisfy ingredients of both the offences. Trial for the offence punishable under section 420 of the Indian Penal Code is to be tried as warrant trial. In view of this, as the complaint also discloses ingredients of offence punishable under section 420 of the Indian Penal Code, I find no merit in this writ petition to that extent. But as it is a mixed question of facts and law, it is desirable for this court not to express its view as to exactly which offence is disclosed from the complaint. In the substance, writ petition being devoid of merit, stands dismissed. Rule discharged with clarification that the trial Court to proceed cwp814.09 7 the trial as warrant trial and not as summary trial. Trial to proceed in accordance with law without prejudiced by the observations of this court while disposing this writ petition. Writ petition stands disposed of accordingly. Considering the peculiar circumstances, no order as to costs. The learned lower Court to expedite hearing of trial, considering pendency of the old trials. ( A.V. POTDAR, J.) dyb