1 mpt IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL WRIT PETITION NO. 3110 OF 2009 Mrs.Nirupa Umesh Karkera ... Petitioner versus Pritam Prabhakar Save & Anr ... Respondents ... Mr.J. Girish Nair for the petitioner. Mr. S.N. Gawade APP for the State. CORAM : D.G. KARNIK, J. DATED : 30th November 2009 P.C. 1. By this application under section 482 of the Code of Criminal Procedure, the applicant prays for quashing of the order dated 20th June 2009 passed by the learned JMFC Vasai issuing process u/s.138 of the Negotiable Instruments Act. 2. Respondent no.1 filed a complaint to the Magistrate against the applicant u/s.138 of the Negotiable Instruments Act. In the complaint, it was alleged that cheque no.587222 drawn on Bharat Sahakari Bank Ltd. on 7th November 2008 for Rs.One lakh was issued by the applicant and was dishonored. Despite notice, the applicant did not pay the 2 money within the stipulated period and therefore, the offence was committed. 3. Learned counsel for the applicant submitted that the cheque dated 7th November 2008 does not bear the signature of the applicant at all. It bears the signature of the husband of the applicant and therefore Magistrate ought not to have issued the process. 4. In support of his submission, learned counsel for the petitioner referred to and relied upon the decision of the Supreme Court in Dhariwal Tobacco Products Ltd. Vs. State of Maharashtra 2009(2) Mh.L.J (Cri)643. In that case, the Supreme Court itself has referred to its earlier decision in G.Sagar Suri Vs. State of U.P. (2000) 2 SCC 636, wherein the Supreme Court has held that jurisdiction u/s.482 of the Code of Criminal Procedure is to be exercised with great care and to prevent the abuse of the process of any court or otherwise to secure the ends of justice. Supreme Court has also referred to another decision reported in Central Bureau of Investigation Vs. Ravi Shankar Srivastava, 2006 (7) SCC 188 wherein the Supreme Court has held that while exercising the powers under section 482 of the Code of Criminal Procedure, the Court does not function as the Court of Appeal or revisional court. Inherent jurisdiction has to be exercised sparingly, carefully and with caution and only when such exercise is justified by the test specifically laid down in the section itself. The Court has further held that when a complaint is sought to be quashed, it is permissible to look to what the complainant has alleged and whether any offence is made out if the allegations are accepted in toto. 3 5. It is thus clear that at the stage of issuance of process, the Magistrate would only into the allegations made in the complaint and the material produced in support of the complaint. He is not required to look to the defence and at the stage of issuance of the process the the accused has not role to play. He is not required to be head and his defence is not required to be considered. 6. In the present case on the plain allegations made in the complaint, complainant has specifically alleged that the cheque was issued by the applicant by signing it. The applicant's verification on oath was recorded before issuing of a complaint. Magistrate was required to proceed on the assumption at the stage of issuance of the process that the cheque bears the signature of the applicant accused as alleged by the complainant. It is only at the stage of the trial that the applicant would disclose her defence that the cheque does not bear her signature. If the Magistrate on trial comes to the conclusion that the cheque does not bear the signature of the applicant accused he would undoubtedly acquit her. But at the stage of issuance of process, the Magistrate cannot decline to issue the process on the assumption that the cheque does not bear the signature of the applicant accused. 7. For these reasons, there is no merit in the writ petition which is hereby dismissed summarily. (D.G. KARNIK,J.)