WP.3495-10 - 1 - VPH IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL WRIT PETITION No. 3495 OF 2010 Mrs. Aarti Prasun Agarwal ...Petitioner Vs. MAGMA FINCORP Ltd. & Anr. ...Respondents Mr. Anil Lalla i/b Anil Lalla, for the Petitioner. Mrs. V. R. Bhosle, APP for the Respondent-State. CORAM: V. M. KANADE J. DATE : DECEMBER 15, 2010 P.C. 1. Heard the learned counsel for the petitioner. The petitioner is challenging the order of issuance of process passed by the learned Metropolitan Magistrate, 30th Court, Kurla in a complaint filed under S. 138 of the Negotiable Instruments Act. It is submitted that two complaints have been filed by the complainant in respect of the said transaction; one at Calcutta and other at Mumbai. It is submitted that this has been done only for the purpose of harassing the petitioner herein. 2. Secondly, it is submitted that the cheque was given as a security to the complainant and the said cheque has been misused and therefore, proceedings under S. 138 of the Act could not have been initiated on the basis of a cheque which was as and by way of security. WP.3495-10 - 2 - 3. It is not possible to accept this submission since number of cheques were given by the petitioner towards repayment of loan which was advanced by the complainant. The petitioner has its office at Mumbai. The respondent/Complainant has a branch at Mumbai. The cheque was deposited by the complainant in Mumbai. Therefore, in my view, Mumbai Court has jurisdiction to try and entertain the complaint. The petitioner would be at liberty to take out appropriate proceedings in respect of the complaint which was filed at Calcutta. Therefore, the first submission cannot be accepted. 4. So far as second submission is concerned, in my view, at this stage, it will not be possible to decide the said issue, since it is a disputed question, which has to be decided by the trial Court at the time of final hearing of the case, after the evidence is led by both the parties. 5. It is further submitted that it is suppression of material facts namely that no other complaint could be filed in respect of the same transaction at any other place. In my view, said submission also cannot be accepted. What has to be stated in the complaint is that no other case has been filed in respect of the cheque which was dishonoured. Admittedly, in respect of the said cheque, the complainant has not filed filed the complaint at Calcutta but the said case is in respect of the WP.3495-10 - 3 - dishonour of another cheque which was allegedly issued by the petitioner herein. Hence, it is not possible to accept the submission made by the learned counsel for the petitioner. 6. Secondly, it is an admitted position that plea of the petitioner has been recorded, affidavit-in lieu of evidence has been filed , the trial, has, thus, begun and therefore, at this stage, it will not be possible to interfere with the order of issuance of process. The writ petition is therefore, dismissed. 7. However, the petitioner is exempted from appearing in the trial Court. The statement of the petitioner under S. 313 Cr. P. C. also may be recorded through the advocate, by following the procedure laid down in S. 313(5) Cr. P. C., provided the petitioner gives an undertaking to the trial Court that he will not dispute his identity and correctness of the answers recorded in the statement under S. 313 Cr. P. The trial Court shall also follow the guidelines laid down by the Apex Court in the case of - Keya Mukherjee, Appellant vs. Megma Leasing Ltd. & Anr., Respondents [(2008) 8 Supreme Court Cases 447]. With these directions, the writ petition is disposed of. [ V. M. KANADE J.]