1 mst IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL WRIT PETITION NO.2584 OF 2008 Mrs.Ujwala Rane Petitioner versus State of Maharashtra & others Respondents Kapil Dave for petitioner. A.T.Zaveri, APP for State. Manohar H. Ramsin for respondent no.1. CORAM : A.S.OKA, J. DATE : 12th June 2009 PC : 1. Heard learned counsel for the petitioner. The first respondent is the complainant in a complaint filed under section 138 of the Negotiable Instruments Act, 1881 (hereinafter referred to as “the said Act of 1881”). According to the first respondent-complainant the cheque was drawn on the account of the first accused which is a limited company. The second accused has been described in the complaint originally filed as “Mr.Rane, Authorised Signatory”. After the first respondent-complainant adduced the evidence by examining its own officer, an officer of the bank of the first accused and an officer of the bank of the first respondent-complainant, an application was 2 made under section 319 of the Code of Criminal Procedure, 1973 (hereinafter referred to as “the said Code of 1973”) for issuing summons to the petitioner herein by exercising power under section 319 of the said Code of 1973. By order dated 23rd April 2008 the said application has been allowed. The summons was ordered to be issued to the petitioner. In revision application filed by the petitioner, the said order has been confirmed. 2. The learned counsel for the petitioner pointed out that in the complaint filed by the first respondent the second accused has been specifically described as signatory of the cheque in his capacity as an authorized signatory of the first accused company. He submitted that the evidence adduced by the officer of the first respondent company that the cheque has been signed by the petitioner herein is completely contrary to the assertions made in the complaint. He submitted that on the basis of such evidence, the summons could not have been ordered to be issued to the petitioner. He also invited my attention to the evidence of PW-2 Shantaram who was working as a clerk in the office of banker of the first accused. Though the said witness stated that the cheque in question has been signed by the petitioner, his cross examination shows that he has no personal knowledge. He submitted that there is no explanation given by the first respondent-complainant as to why it was not disclosed in the 3 complaint that the petitioner is the alleged signatory to the said cheque. He submitted that the order passed under section 319 does not record that the process or summons should be issued under a particular section. He submitted that the order itself records that the petitioner could not be heard before passing the said order and, therefore, in any event the application will have to be reheard after giving an opportunity of being heard to the petitioner. 3. I have carefully considered the submissions. The cheque in question has been drawn on the account of the first accused which is a limited company. In view of section 138 and Section 141 of the said Act of 1881 the signatory to the cheque can be prosecuted. After the complainant examined three witnesses it was revealed that the present petitioner was the signatory to the cheque and, therefore, a prayer was made to invoke the power under section 319 of the said Code of 1973 as the evidence adduced by the first respondent- complainant made out a case to proceed against the petitioner. As the evidence disclosed that the petitioner is the signatory to the cheque, the learned Magistrate directed that the summons be issued to the petitioner. 4. Process was already issued on the complaint filed by the first respondent for the offence under section 138 of the said Act of 1881. 4 On plain reading of the order passed by the learned Magistrate it was obvious that the summons was ordered to be issued to the petitioner for the offence punishable under section 138 of the said Act of 1881. 5. Considering all the aforesaid circumstances, it is not possible to interfere with the impugned order in this petition under Article 227 of the Constitution of India read with section 482 of the said Code of 1973. It is obvious that the petitioner will be entitled to defend herself and notwithstanding the observations made in the impugned order all the defences will be open to the petitioner. 6. Subject to what is observed above, the writ petition is rejected. (A.S.OKA, J.)