WP.2053-10 - 1 - VPH IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL WRIT PETITION No. 2053 OF 2010 Mrs. Amina Israr Ahmed ...Petitioner Vs. The State of Maharashtra & Anr. ...Respondents *** Mr. A. M. Sarogi, for the Petitioner. Mrs. V. R. Bhonsale, APP for Respondent No.1. Mr. Laxman Kanal, for Respondent No.2. *** CORAM: V. M. KANADE J. DATE : OCTOBER 6, 2010 P.C. 1. Heard the learned counsel appearing for the petitioner and respondent No.2. The petitioner is challenging the order of issuance of process passed by the learned Magistrate on a complaint filed under S. 138 of the Negotiable Instruments Act. 2. It is submitted by learned counsel for the petitioner that the amount which was payable under the cheques was Rs.45,000/- and without prejudice to the rights and contentions, said amount was returned WP.2053-10 - 2 - by sending two pay orders dated 7th December 2009. It is submitted that the said pay orders have not been returned till date by the complainant, therefore, cause of action does not survive. It is submitted that the petitioner is willing to pay the legal expenses incurred by the respondent No.2/original complainant. However, the learned counsel, after taking instruction from respondent No.2, who is present in the Court, submits that he does not wish to accept this proposal and the complainant wishes to proceed with the criminal case. It is submitted that the complaint was filed on 3rd December 2009 and only thereafter the two pay orders were sent. According to the complainant, he had returned the pay orders by sending them by R.P.A.D. However, the said pay orders were returned back. It is submitted that on non-payment of the amount due, offence is complete and therefore, the complainant was not duty bound to accept the pay orders sent by the accused thereafter. 3. Though this Court had tried to pursuade both the parties to settle the dispute, unfortunately, the complainant is not in a mood to accept the suggestion of this Court. Since it is the case of the complainant that he received the pay orders after the complaint was filed and he made an attempt to return it, unfortunately, it is not possible to accept the submission of the learned counsel for the applicant. This WP.2053-10 - 3 - fact will have to be decided by the trial Court during the course of trial. However, the said issue is kept open and also the issue in respect of inquiry under S. 202 Cr.P.C. The writ petition is therefore, dismissed. 4. However, the petitioner is exempted from appearing in the trial Court. Her plea may be recorded through the advocate. Her statement under S. 313 Cr.P.C. may be recorded as per the procedure laid down in S. 313(5) Cr.P.C. The petitioner, however, shall give an undertaking to the trial Court that she will not dispute the identity and correctness of the answers, recorded under S. 313 Cr. P. C. Trial is expedited. [ V. M. KANADE J.]