- 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.82 OF 2009 APPLICATION NO.82 OF 2009 APPLICATION NO.82 OF 2009 Smt.Sujata Sharad Shejali ...Applicant vs. Uday V. Misal & Anr. ...Respondents Mr.I.A.Bagaria for the applicant Mr.H.J.Dedhia A.P.P. for State Mr.Holambe-Patil for the respondent no.1 CORAM: CORAM: CORAM: A.S.OKA,J. A.S.OKA,J. A.S.OKA,J. DATE DATE DATE : MAY 5,2009 : MAY 5,2009 : MAY 5,2009 P.C.: P.C.: P.C.: 1. Heard learned counsel for the applicant. The applicant has been arraigned as an accused in a complaint under section 138 of the Negotiable Instruments Act,1881. Process has been issued on the said complaint. The ground on which the present petition is filed for quashing the complaint is that first respondent-complainant has committed forgery in connection with the Bank Officers by opening a fictitious account in the name of the applicant. It is contended that after opening the account in the name of the applicant, the first respondent procured a cheque book and have issued the disputed cheques by forging the signatures of the first respondent. It is contended that for the said offence, the applicant has filed a complaint on which order under section 156 (3) of the Code of Criminal Procedure,1973 has been passed and the police have obtained an opinion of a hand writing expert during the investigation. The second contention raised by the applicant is that in view of the complaint filed by the applicant, an order under section 309 of the said Code ought to have been - 2 - passed by the learned Magistrate. 2. As far as the first contention is concerned, it is the defence of the applicant to the complaint filed by the first respondent under section 138 of the Negotiable Instruments Act,1881. The said defence will have to be established on evidence. Only because the allegation of forgery has been made against the applicant, the complaint under section 138 of the said Act cannot be quashed. 3. As far as the second aspect is concerned, the learned counsel for the applicant stated that the applicant had applied under section 309 of the said Code and the said application has been rejected. Rejection of the said application is no ground to quash the complaint filed by the first respondent. The applicant will have to adopt appropriate remedy in that behalf. Hence, no case is made out for interference as far as order of issue of process is concerned. However, the contentions raised by the applicant are kept open. It will be open for the applicant to file separate proceeding for challenging the order passed on application under section 309 of the said Code. 4. At this stage, the learned counsel for the applicant states that the application for grant of exemption has been rejected by the learned Magistrate. If that is so, the orders passed by the learned Magistrate will have to be challenged by - 3 - the applicant by filing a separate proceeding. JUDGE JUDGE JUDGE