- 1 - IN IN IN THE HIGH COURT OF JUDICATURE AT BOMBAY THE HIGH COURT OF JUDICATURE AT BOMBAY THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL CRIMINAL CRIMINAL APPELLATE JURISDICTION APPELLATE JURISDICTION APPELLATE JURISDICTION CRIMINAL CRIMINAL CRIMINAL WRIT PETITION NO.629 OF 2009 WRIT PETITION NO.629 OF 2009 WRIT PETITION NO.629 OF 2009 Prabhakar Narayan Mhatre ...Petitioner vs. Chunilal Harjivandas Doshi & Anr. ...Respondents Mr.Amin Solkar for the petitioner Mr.H.J.Dedhia A.P.P. for State CORAM: CORAM: CORAM: A.S.OKA,J. A.S.OKA,J. A.S.OKA,J. DATE DATE DATE : APRIL 8,2009 : APRIL 8,2009 : APRIL 8,2009 P.C.: P.C.: P.C.: 1. Heard learned counsel for the petitioner. The challenge by the petitioner-accused is to an order by which process was issued under section 138 of the Negotiable Instruments Act,1881 (hereinafter referred to as the said Act). The submission of the petitioner is that no particulars of the amount allegedly paid by the complainant to the applicant have been mentioned in the complaint. The second submission is that there was no legally enforceable debt. He pointed out that the cheque in question was stolen by the Petitioner’s Manager Mr.Ishwarsingh Munshiram Jakad and a criminal case was registered against the said manager. He submitted that the statements recorded in the said criminal case show that the said defence taken by the petitioner is true. 2. I have considered the submissions. The offence alleged is under section 138 of the Negotiable Instruments Act,1881. As of today, in view of the presumption under section 139 of the - 2 - said Act, it is not possible to come to the conclusion that merely because averments are not made in the complaint indicating the date on which the amounts were paid to the petitioner there is no legally enforceable debt. Whether the presumption stands rebutted is a question which can be decided only on the evidence adduced. At this stage, only on the basis of the averments made in the complaint it cannot be held that the debt is not a legally enforceable debt. As far as the third ground is concerned, reliance is placed on the statements recorded by the police. As of today, the said statements cannot be read as evidence. The defence raised by the petitioner will have to be tested on evidence. 3. In the circumstances, no case is made out for quashing the order issuing process. Petition is accordingly rejected. It is made clear that the observations made in this order are for limited purposes of dealing with the prayer for quashing the process at the stage before evidence is adduced. JUDGE JUDGE JUDGE