- 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 APPLICATION NO.1258 OF 2005 APPLICATION NO.1258 OF 2005 APPLICATION NO.1258 OF 2005 Anil Krishna Zunzurwad ...Applicant vs. Mrs.Smita Vijay Shah & Others ...Respondents Mr.R.R.Bhonsale for the applicant Mr.Prashant Hagare i/b Dipale Girme for respondent No.1 Mr.J.P.Yagnik A.P.P. for State CORAM: CORAM: CORAM: A.S.OKA,J. A.S.OKA,J. A.S.OKA,J. DATE DATE DATE : AUGUST 12,2008 : AUGUST 12,2008 : AUGUST 12,2008 P.C.: P.C.: P.C.: 1. Heard the learned counsel for the Applicant. The applicant has been arraigned as one of the accused in a complaint filed by the first Respondent under section 138 of the Negotiable Instruments Act,1881. Process was issued against the Applicant. According to the averments made in the complaint, the cheques on the basis of which the complaint was filed were signed by the Applicant in his capacity as a partner of accused No.1. The process was issued in the complaint. An application for recall of the process was filed by the Applicant which came to be rejected. A revision application was filed for challenging the said order which has been dismissed. 2. The main contention raised in the application is that the Applicant had no contractual relationship with the first - 2 - Respondent. It is contended that the accused no.1-firm is not a partnership firm but is a proprietary concern of the third Respondent. A contention is raised that the blank cheques were issued by the Applicant in favour of a third party M/s.Siosa Enterprises and the said blank cheques have been misused by the first Respondent. 3. I have carefully considered the submissions. Perusal of the averments made in the complaint show that necessary ingredient of section 138 of the Negotiable Instrument Act,1881 are made out. Whether the accused no.1 is a firm or a proprietary concern and whether the cheques issued by the Applicant in favour of the third party M/s.Siosa Enterprises have been misused by the first Respondent are the questions to be decided on evidence. Considering the averments made in the complaint, at this stage, no case is made out for quashing the complaint. However, all contentions raised by the Applicant in this application are expressly kept open. 4. Subject to what is observed above, application is rejected. JUDGE JUDGE JUDGE