[-1-] IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL W.P.NO. 1494 OF 2008 Mukund Govind Kulkarni ..Petitioner Vs. State of Maharashtra & Anr. ..Respondents ... Mr.G.N.Salunke with Mr.Umesh Kusurf advocate for petitioner Ms.A.A.Mane A.P.P. for the State Mr.S.S.Pakale Adv.for Respondent no.2 ... CORAM: SMT.V.K.TAHILRAMANI,J. CORAM: SMT.V.K.TAHILRAMANI,J. CORAM: SMT.V.K.TAHILRAMANI,J. DATE : DECEMBER 2, 2008 DATE : DECEMBER 2, 2008 DATE : DECEMBER 2, 2008 P.C. P.C. P.C. 1. Heard the learned advocate for the petitioner-orignial accused, the learned advocate for the respondent no.2-original complainant and the learned A.P.P. for the State. 2. The respondent no.2 filed complaint under Section 138 of Negotiable Instruments Act against the petitioner. The said case is numbered as CC No.1736 of 2001 which is pending before the learned Judicial Magistrate F.C. Karad. In the said case, process has been issued under section 138 of [-2-] Negotiable Instruments Act. Being aggrieved thereby, Revision No.12 of 2004 came to be preferred by the petitioner before the Sessions Court at Karad. The said revision came to be dismissed by the learned Sessions Judge by order dated 31.12.2007, hence, this petition. 3. The learned advocate for the petitioner has submitted that in the complaint cheque number is mentioned as 505989 whereas in the verification, number is mentioned as 505988. It is submitted that on account of the descripancy in the number of cheques, process ought to be quashed. As far as this aspect is concerned, it is seen that this ground was not raised in the revision preferred by the petitioner before the learned Sessions Judge nor was it argued before the learned Sessions Judge. In such case, obviously, the learned Sessions Judge could not consider this point. Today, what is challenged before me is the legality and correctness of the order of the learned Sessions Judge. No fault can be found with order of the learned Sessions Judge for not considering the point which was not raised before him. Hence, at this stage, I am not inclined to entertain this [-3-] petition on this ground. 4. Thereafter, the learned advocate for the petitioner submitted that process deserves to be quashed as the cheque was not issued in respect of any legal liability. However, on perusal of the complaint, it is seen that the petitioner had asked the complainant for a friendly loan and accordingly, Rs.20,000/- was advanced by the complainant to the petitioner. Thus, it is seen that the cheque was issued in respect of legally enforceable liability. Thereafter, it was submitted that cheque is dated 17.4.2001 whereas the account of the petitioner was closed on 17.1.2001. It is submitted that once the account is closed, the cheque-books are returned to the bank and hence, the petitioner could not have issued any cheque to the complainant on 17.4.2001. This is the defence of the accused. At present there is no material to show that all cheques were indeed returned by the petitioner to the bank. It is well known that if the account is closed, unused cheques are not always returned by the parties to the bank. The record shows that the cheque dated 17.4.2001 was given to the complainant by the [-4-] petitioner. The said cheque was deposited in the bank and it came to be dishonoured on 28.5.2001 as per the Bank Memo bearing stamp date 31.5.2001. Thereafter, notice was given to the petitioner-accused within the stipulated time. The said notice is received by the petitioner on 12.7.2001 and thereafter, complaint came to be filed within the stipulated time. Admittedly, within the stipulated time from the receipt of notice, the amount has not been paid to the complainant. Thus, in view of the record, no case is made out for quashing of process especially as in my view, it would be necessary for the petitioner to lead evidence to prove his defence before the trial Court. 5. Petition is disposed of. [SMT.V.K.TAHILRAMANI, J.] [SMT.V.K.TAHILRAMANI, J.] [SMT.V.K.TAHILRAMANI, J.]