IN THE HIGH COURT OF JUDICATURE AT BOMBAY IN THE HIGH COURT OF JUDICATURE AT BOMBAY IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL APPELLATE JURISDICTION CRIMINAL APPELLATE JURISDICTION CRIMINAL WRIT PETITION No.2468 OF 2008 CRIMINAL WRIT PETITION No.2468 OF 2008 CRIMINAL WRIT PETITION No.2468 OF 2008 Sunanada Manikrao Thorat ..Petitioner. vs. The State of Maharashtra & Anr. ..Respondents. WITH WITH WITH CRIMINAL WRIT PETITION No.2469 OF 2008 CRIMINAL WRIT PETITION No.2469 OF 2008 CRIMINAL WRIT PETITION No.2469 OF 2008 Chandrashekhar Shivajirao Pawar .. Petitioner. vs. Balasaheb Sayaji Thombre & Anr .. Respondents. WITH WITH WITH CRIMINAL WRIT PETITION No. 2470 OF 2008 CRIMINAL WRIT PETITION No. 2470 OF 2008 CRIMINAL WRIT PETITION No. 2470 OF 2008 Tukaram Kashinath Mandale .. Petitioner. vs. Balasaheb Sayaji Thombre & Anr .. Respondents. WITH WITH WITH CRIMINAL WRIT PETITION No. 2471 of 2008 CRIMINAL WRIT PETITION No. 2471 of 2008 CRIMINAL WRIT PETITION No. 2471 of 2008 Tukaram Kashinath Mandale .. Petitioner. vs. Balasaheb Sayaji Thombre & Anr .. Respondents. WITH WITH WITH CRIMINAL WRIT PETITION No. 2472 of 2008 CRIMINAL WRIT PETITION No. 2472 of 2008 CRIMINAL WRIT PETITION No. 2472 of 2008 Chandrashekhar Shivajirao Pawar .. Petitioner. vs. Balasaheb Sayaji Thombre & Anr .. Respondents. WITH WITH WITH CRIMINAL WRIT PETITION No. 2473 of 2008 CRIMINAL WRIT PETITION No. 2473 of 2008 CRIMINAL WRIT PETITION No. 2473 of 2008 Sunanda Manikrao Thorat .. Petitioner. vs. Balasaheb Sayaji Thombre & Anr .. Respondents. WITH WITH WITH CRIMINAL WRIT PETITION No. 2474 OF 2008 CRIMINAL WRIT PETITION No. 2474 OF 2008 CRIMINAL WRIT PETITION No. 2474 OF 2008 Chandrashekhar Shivajirao Pawar .. Petitioner. vs. Balasaheb Sayaji Thombre & Anr .. Respondents. WITH WITH WITH CRIMINAL WRIT PETITION No. 2475 OF 2008 CRIMINAL WRIT PETITION No. 2475 OF 2008 CRIMINAL WRIT PETITION No. 2475 OF 2008 Sunanda Manikrao Thorat .. Petitioner. vs. Balasaheb Sayaji Thombre & Anr .. Respondents. WITH WITH WITH CRIMINAL WRIT PETITION No.2476 of 2008 CRIMINAL WRIT PETITION No.2476 of 2008 CRIMINAL WRIT PETITION No.2476 of 2008 Tukaram Kashinath Mandale .. Petitioner. vs. Balasaheb Sayaji Thombre & Anr .. Respondents. Mr Subhash Jha i/b Shri Bilmai N. Bhabhada, Advocate for the Petitioner. Mr Sandeep K. Shinde a/w Satyajeet P. Dighe for Respondent No.1. Ms A.A. Mane, A.P.P. in all the petitions. CORAM : A.R. JOSHI,J. CORAM : A.R. JOSHI,J. CORAM : A.R. JOSHI,J. DATED : 26th March,2009. DATED : 26th March,2009. DATED : 26th March,2009. P.C.:- P.C.:- P.C.:- 1. In all writ petitions, respondent no.1 (original accused) is the same. In fact, similar situation arise regarding giving respective cheques to the respective petitioners (original complainants) and as such cheques came to be dishonoured. After issuance of demand notices respective criminal cases came to be filed against the same accused and at this premise all nine writ petitions are being disposed of by this common order. 2. Heard rival submissions at length. 3. The present writ petitions are challenging the order of the learned Ad voc Additional Sessions Judge, Nashik (the Revisional Court for short) passed on 30.6.2008. By the said orders of the Revisional Court the Revision Applications of the accused were allowed and the orders of issuance of process passed in respect of complaints were set aside. 4. Orders of issuance of process against the same accused were separately passed in all nine complaints for initiating proceeding against him under Section 138 of the Negotiable Instruments Act and such orders were passed on the basis of the contents of the complaints and the verification statements and on perusal of the documents mentioning prima facie material to proceed against the accused. When said orders of issuance of process were challenged before the Revisional Court the reasoning given by the Revisional Court is that the Trial Magistrate has over looked the contents of the Memorandum of Understanding (MoU for short) arrived at between the parties on 18th of December, 2006 and according to the Revisional court in view of the contents of such MoU there was no existing liability at the time of issuance of impugned cheques. It is significant to note that there was no such MoU reportedly produced before the Trial Magistrate as submitted on behalf of the present petitioners and as such the reasoning given by the Revisional Court is per se erroneous and cannot sustain. Moreover, the another reasoning given by the Revisional Court implying that the orders of issuance of process were mechanically passed due to the use of the xerox copy of the orders with the names of the accused written in hand at the end of such order, does not lead this Court to hold that there was any non application of mind. In fact, it was the procedure presumably adopted when similar orders were passed in all nine matters having common facts and all the cases against the same accused but by different complainants. 5. In the opinion of this Court, it must be said that what was before the learned Trial Magistrate while issuing the process under Section 138 of the Negotiable Instruments Act was only required to be looked into and there is nothing before this Court to ascertain that said alleged MoU referred by the accused was in fact forming part of the documents produced before the learned Magistrate. In that view of the matter, at the cost of repetition, it must be said that the opinion expressed by the Revisional Court as to Judicial Magistrate not taking into consideration the contents of MoU, is per se erroneous and cannot sustain. In the result, it must be said that there was nothing to alter the order of issuance of process against the accused in all criminal complaints. At the most, the shelter taken on behalf of the accused as to the contents of MoU could be his valid defence and whether he succeeds in the said defence or not is question of appreciation of evidence and it cannot be considered when the matter was at hand before the learned Magistrate for issuance of process. 6. In view of above observations, the writ petition are liable to be allowed. The impugned orders of the Revisional Court dated 30.6.2008 are set aside thereby restoring the order of the Trial Magistrate of issuance of process against the accused. The Trial Magistrate to proceed with all criminal complaints according to law. 7. The Trial Magistrate shall not be influenced by the observations mentioned in the present order while dealing with the criminal complaints on their own merits. 8. Considering the mandate of law, so far as enactments of Negotiable Instruments Act are concerned and specifically matters for the offence punishable under Section 138 of the N.I. Act the trial Magistrate shall dispose of the said pending criminal cases on priority. 9. All aforesaid criminal writ petitions stand disposed of in terms of above order. (A.R.JOSHI,J.) (A.R.JOSHI,J.) (A.R.JOSHI,J.)