1 WP 2232/2010 to WP 2240/2010 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL WRIT PETITION NO.2232 OF 2010 WITH CRIMINAL WRIT PETITION NO.2233 OF 2010 WITH CRIMINAL WRIT PETITION NO.2234 OF 2010 WITH CRIMINAL WRIT PETITION NO.2235 OF 2010 WITH CRIMINAL WRIT PETITION NO.2236 OF 2010 WITH CRIMINAL WRIT PETITION NO.2237 OF 2010 WITH CRIMINAL WRIT PETITION NO.2238 OF 2010 WITH CRIMINAL WRIT PETITION NO.2239 OF 2010 WITH CRIMINAL WRIT PETITION NO.2240 OF 2010 Alpesh Ashok Mehta ...Petitioner Vs. The State of Maharashtra & Anr. ...Respondents Mr.A.M. Saraogi for Petitioner . Mr.D.R. More, APP for the State Mr.J.G. Shukla i/b. M/s. G.H. Shukla & Co. for Respondent No. 2 CORAM: V.M. KANADE J. DATED: 26TH OCTOBER, 2010 2 WP 2232/2010 to WP 2240/2010 P.C:- 1. Heard the learned Counsel appearing on behalf of the Petitioner. 2. Petitioner is challenging the order of issuance of process passed by the Metropolitan Magistrate, 33rd Court, Ballard Pier in a complaint filed by Respondent No.2 under section 138 of the Negotiable Instruments Act. 3. It is firstly submitted that the Petitioner is residing at Ahmedabad which is outside the jurisdiction of the Court. However, in spite of this, the learned Magistrate did not postpone the issuance of process as contemplated under the provisions of amended section 202 of the Criminal Procedure Code. It is submitted that provisions of section 202 of the Criminal Procedure Code are mandatory and, therefore, in the absence of inquiry being conducted, the order of issuance of process passed by the learned Magistrate is illegal and liable to be quashed. It is then submitted that, in the complaint it was alleged that the Petitioner was a partner of the partnership firm in which the complainant was also a partner and in the complaint it was alleged that the cheque which was given for repayment of loan given by the complainant to the firm was dishonoured. It is submitted that unless the accounts of the partnership firm are settled 3 WP 2232/2010 to WP 2240/2010 and a Deed of Dissolution is executed between the parties, it could not be said that the said amount was due and payable by one partner to the other partner and, therefore, there was no existing debt or liability. 4. It is not possible to accept both the submissions made by the learned Counsel appearing on behalf of the Petitioner. This Court in Shri Bansilal S. Kabra vs Global Trade Finance Ltd. & Anr.1 has held that provisions of section 202 of the Cr.P.C., so far as complaints under section 138 of the Negotiable Instruments Act are concerned, are directory and not mandatory. A discretion, therefore, vests in the learned Magistrate to decide whether, in a given case, it is necessary to hold a separate inquiry after postponing the issuance of process. In a complaint filed under section 138, the Magistrate has to examine few aspects viz (i) whether cheque was issued by the accused, (ii) whether it was dishonoured and (iii) whether notice was served on the accused and there was non-payment within the stipulated period after service of the notice. A presumption is raised under section 139 of the Negotiable Instruments Act about existence of legal debt and liability. This being the position, a detailed inquiry by the learned Magistrate in each and every case is not necessary. The view taken by this Court in Shri Bansilal S. Kabra (supra)2 that the said provisions are directory has also been taken by other High Courts in India. 1 Criminal Application No.1344/2010 decided on 9/7/2010 2 Criminal Application No.1344/2010 decided on 9/7/2010 4 WP 2232/2010 to WP 2240/2010 Hence, submission made by the learned Counsel for the Petitioner that because the inquiry under section 202 is not held the order of issuance of process is illegal, cannot be accepted. 5. So far as second submission made by the learned Counsel appearing on behalf of the Petitioner is concerned the said submission is also without any substance. The question of existence of legal debt or liability is a question of fact and this Court is not expected to decide the disputed questions of fact at this stage. This aspect, therefore, will have to be considered by the Trial Court after evidence is adduced by both the parties. 6. For the aforesaid reasons, It will not be possible to entertain these Writ Petitions filed by the Petitioner. Writ Petitions are, therefore, dismissed. 7. It appears that the non-bailable warrant was issued by the Trial Court during pendency of the trial. The said non- bailable warrant is set aside. 8. The Petitioner is exempted from appearing in the Trial Court. The statement under section 313 of Cr.P.C may be recorded through his advocate provided that the Petitioner gives an undertaking that he shall not dispute his identity or correctness of the answers recorded under section 313 of 5 WP 2232/2010 to WP 2240/2010 Cr.P.C. The learned Magistrate shall follow the procedure laid down by the Apex Court in the case of Keya Mukherjee and the amended section 313 (5) of Cr.P.C. 9. All the questions raised by the Petitioner in these Petitions are kept open and the Trial court shall decide the same at the time of hearing of the trial. The Trial is expedited. (V.M. KANADE, J.)