1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY NAGPUR BENCH, NAGPUR CRIMINAL WRIT PETITION NO. 320 OF 2011 (Hallmark Steel Pvt. Ltd. vs. M/s. FACOR Steel Ltd.) ____________________________________________________________________________________________________ Office Notes, Office Memoranda of Coram, appearances, Court's orders Court's or Judge's order of directions and Registrar's orders _ ____________________________________________________________________________________________________ CORAM : A.P. BHANGALE, J. DATED : 2 nd August, 2011. Heard Mr.C.S.Samundra, Adv. for the petitioner and Mr.V.V.Bhangade, Adv for respondent. By this petition, the petitioner has prayed for setting aside the impugned judgment and order dt.3.5.2011 passed in Criminal Revision Petition No.247 of 2011 by the Ad-hoc Additional Sessions Judge-II, Nagpur. It appears that complaint u/s.138 of the Negotiable Instruments Act was instituted against the petitioner/accused wherein the learned trial Magistrate was pleased to issue process for an offence punishable u/s.138 of the Negotiable Instruments Act (Vide Complaint Case No.3435 of 2011) filed on 7.2.2011 in the Court of Judicial Magistrate, First Class, Nagpur. The learned trial Magistrate, after considering the verification, documents and after hearing the Counsel for the complainant, was satisfied that the complainant 2 has made out a prima facie case and issued process u/s. 138 of the Negotiable Instruments Act against the petitioner herein. It is submitted on behalf of the petitioner that the total liability of the petitioner's Company was to the extent of Rs.34,79,604/- only, while blank cheques were delivered to the respondent/complainant on 26.2.2010 for the amounts which were prima facie exceeding legally dischargeable and valid liability. It is the grievance of the petitioner that although the order of issuance of process was challenged before the learned Ad-hoc Additional Sessions Judge-II, Nagpur, the revision was also dismissed mainly on the ground that it is a matter of evidence, to be considered at the time of trial. The learned Counsel for the petitioner submitted that the cheques in question were not issued towards discharge of any liability and were tendered by way of security and therefore, no offence was made out against the petitioner (original accused). According to the learned Counsel, issuance of process amounted to abuse of process of law since the complaint was lodged with a view to harass the petitioner. Therefore, the process ought not to have been issued. In support of the submissions, the learned Counsel made a reference to the following rulings : 3 1. Travel Force vs. Mohan N. Bhave and another [2007 (3) Mh.L.J. 339]. 2. Avon Organics, Hyd. Ltd. vs. Poineer Products Ltd. and Ors. [2003 ALL MR (Cri) Journal 105] 3. Karekar Finance Pvt. Ltd. vs. Shri M.N.Bashyam and another [2007 ALL MR (Cri) 3073] 4. Sudhir Kumar Bhalla vs. Jagdish Chand and Others [{2008} 7 SCC 137]. In the case of Travel Force (cited supra), the facts therein indicated that the cheque in question was issued for investment in fixed deposit and the complainant/Company, who had accepted the fixed deposit, invested the amount in their schemes. It was clear on the face of the complaint that the cheque was not issued in discharge of any debt or other liability either wholly or in part. Under these circumstances, this Court had found that no presumption of any nature much less u/s.138 of the Negotiable Instruments Act could arise in favour of the complainant and therefore, the question of rebuttal by the accused did not arise. For the above reasons, this Court did not find fault with the finding of the revisional Court that the cheque was 4 issued without consideration or in other words, the cheque was not issued towards discharge of any debt or liability. In the present case, however, the petitioner do not dispute that the cheques were signed as also the figures were mentioned in the cheques, but rest of the contents in the cheques issued are disputed contending that the cheques were issued by way of security. It is not the case of the petitioner that there was no liability at all to be discharged, but his case is that the liability was only to the extent of Rs.34,79,604/- as per the balance sheet. Rest of the rulings at senior nos. 2 to 4 (above), which were referred by the learned Counsel for the petitioner, appear in respect of the proceedings in which the evidence was led and appreciated by the Courts below. The learned trial Magistrate is expected under Chapter XV of the Criminal Procedure Code to peruse the complaint, record verification of the complainant and thereafter, consider the evidence of witnesses, if any and to proceed further in the case by passing order either to dismiss the complaint or to issue process, if there is ground to proceed in the case. In the instant case, the impugned order was passed u/s.204 of the Code of Criminal Procedure for issuance of process as follows : 5 “ Heard Counsel. Perused Documents. It appears that Complainant had made out prima-facie case. Hence issue process u/s.138 of N.I.Act against accused nos. 1 to 4. “ Looking into the averments made in the Complaint Case No.3435 of 2011 instituted on 7.2.2011 and considering the elementary ingredients of offence punishable under Section 138 of the Negotiable Instruments Act in this case, the complaint appears to have been instituted after issuance of the statutory demand notice which, according to the petitioner, was also replied by them. Under these circumstances, bearing in mind the statutory presumptions in favour of the complainant u/s. 139 r/w. 188 of the Negotiable Instruments Act, the trial Magistrate was justified to issue process. For all the above reasons, therefore, no fault can be found with the impugned judgment and order passed by the learned Ad-hoc Additional Sessions Judge-II, Nagpur. The petition lacks merits. It is, therefore, dismissed. JUDGE jais 6