1 IN THE HIGH COURT OF JUDICATURE OF BOMBAY BENCH AT AURANGABAD CRIMINAL WRIT PETITION NO.114 OF 2009 . Bharat s/o Vishwanath Raminwar, age: 50 years, Occ: Business, R/o Saibaba Nagar, Purna Road, Nanded. Petitioner Versus Sanjay s/o Rajeshwarrao Chinnamwar, age: 40 years, Occ: Agri. And Business, R/o Degloor, Tq. Degloor, District Nanded. Respondent Mr.M.V.Ghatage, advocate holding for Mr.B.N.Ghadegaonkar, advocate for the petitioner. Mr.S.J.Salunke, advocate for Respondent. CORAM: R.M.BORDE, J. DATE : 18th July, 2009. JUDGMENT: 1 Heard learned Counsel for respective parties. 2 Rule. Rule made returnable forthwith and heard finally by consent of the parties. 3 Petitioner herein is arrayed as accused in S.C.C. No.280/2008 pending on the file of Judicial Magistrate, First Class, Degloor, in respect of commission of offence punishable under Section 138 of the Negotiable Instruments Act. 2 4 Respondent-complainant has stated in the complaint that accused is his relative and is having friendly terms with him since long. Complainant as well as accused used to borrow from each other amount towards hand loan whenever they were in financial crisis. Accused was in need of amount and as such approached the complainant with a request to advance him sum of Rs.Five lacs. Complainant, taking into consideration need of accused, assured him to pay amount, however, asked him to hand over post dated cheques. Complainant, as such, in presence of two witnesses paid amount of Rs.Five lacs to the accused and accused has assured to repay the amount in the months of September and October 2007. Accused issued post dated cheque bearing date 25.09.2007 for Rs.Two lacs and another two cheques bearing date 25.10.2007 for amount of Rs.1,50,000/- each. In the month of September and October 2007, accused requested the complainant that as he could not arrange for money and as such he should not deposit said cheques till March 2008. Accordingly, complainant presented the cheques in the bank on 24.03.2008, however, cheques were dishonoured as the accused did not maintain sufficient balance in his account. Complainant, as such, issued notice calling upon the accused to pay the amount. Accused refused to accept the notice on 02.05.2008. Munim of the accused, however, received the notice on 26.04.2008. Accused thereafter sent his relatives to the complainant with a view to settle the dispute amicably on 10.05.2008 and there was negotiated settlement. Accused paid an amount of Rs.1,59,000/- and complainant returned one cheque for an amount of Rs.1,50,000/- dated 25.10.2007 The agreement was got reduced into writing on a stamp paper in the presence of witnesses. Complainant, however, in order to avoid further complications in respect of limitation in filing the complaint as well as accrual of cause of action, after 15 days of service of notice, presented Complaint within limitation. 5 The Judicial Magistrate, First Class, Degloor, on receipt of the 3 complaint and on perusal of affidavit in support of complaint, has directed issuance of process against accused for commission of offence punishable under Section 138 of the Negotiable Instruments Act, by his order dated 02.08.2008. 6 Accused, being aggrieved by the order passed by Judicial Magistrate, First Class, Degloor, presented Criminal Revision Application No. 25/2008 to the Court of Sessions. The Revision Application was heard by Additional Sessions Judge, Biloli, who was pleased to dismiss the same. 7 I have heard arguments advanced by Shri M.V.Ghatage, learned Counsel holding for Mr.B.N.Gadegaonkar, advocate for petitioner and Shri S.J.Salunke, learned Counsel for Respondent. 8 Shri Ghatage, learned Counsel appearing for petitioner – original accused contends that the learned Magistrate has not adhered to the prescribed procedure before directing issuance of process against accused. According to him, it is mandatory for the learned Magistrate to examine the complainant and presentation of affidavit by the complainant cannot be a substitute for recording verification statement. 9 In this regard, reliance can be placed on the judgment of Division Bench of this Court in the case of Maharaja Developers & another Vs. Udaysing s/o Pratapsinghrao Bhonsle & another, reported in 2007 ALL MR (Cri) 1339, wherein it has been laid down: “The non-obstante clause in Section 142 or 145 of the N.I. Act does not override the provisions of Section 200 of Cr.P.C. And it is mandatory for the Magistrate to examine the complainant who has filed the same under Section 138 of the N.I. Act though with an affirmation as regards truthfulness of the contents of the complaint. It, therefore, 4 follows that the Magistrate is obliged and duty bound to examine upon oath the complainant and his witnesses before issuance of process under Section 204 of Cr.P.C. Though there is a solemn affirmation at the foot of the complaint by the complainant. “ 10 Although, learned Magistrate ought not to have issued process on receiving sworn affidavit of the complainant, the irregularity, that has cropped in, cannot be said to be incurable. The Magistrate can very well be directed to record verification statement of the complainant and thereafter proceeds to take decision as regards issuance of process. Complaint presented by complainant need not be dismissed on the ground of failure to adhere to the procedural requirements by the Magistrate. 11 Another argument advanced by learned Counsel for the petitioner is that there was no cause of action for presentation of the complaint. According to him, original agreement entered into between parties, has been substituted by the agreement entered into on 16.05.2008, which is reduced into writing. Thus, according to him, complainant cannot be permitted to prosecute the accused on the basis of accrual of cause of action in pursuance to the earlier agreement. 12 On perusal of the complaint itself, it is evident that the cheques were presented on 24.03.2008 and on the ground of dishonour of the said cheques, instant complaint is filed after giving due notice. During intervening period, complainant has extended time for making repayment. According to the accused, cause of action would accrue to the complainant only after violation of terms of settlement arrived at between the parties on 16.05.2008. Learned Counsel for the Respondent – original complainant, however, contends that subsequent agreement, in fact, does not replace the earlier agreement and it is not a new transaction, but it is merely a supplementary agreement to the 5 main transaction reached between the parties. 13 As I am remitting the matter back to the trial Court for reconsideration of the issue in respect of issuance of process on account of failure to adhere to the mandatory procedure by the Magistrate, I refrain myself from commenting upon the arguments made by learned Counsel for petitioner – accused touching merits of the controversy. It would be for the learned Magistrate to look into the matter and pass appropriate orders. 14 It has also been contended that the Magistrate could not have directed issuance of process against accused before the date of accrual of cause of action, which, according to accused, shall have to be construed in terms of the agreement dated 16.05.2008. Learned Counsel for the petitioner has placed reliance on the judgment of the Apex Court in the case of M/s Sarav Investment & Financial Consultants Pvt. Ltd. & another Vs. Lloyds Register of Shipping Indian Office Staff Provident Fund & another, reported in 2008 ALL MR (Cri) 300 (S.C.) and contends that the complaint itself is untenable. 15 Learned Counsel for the Respondent places reliance on the judgment in the case of Narsingh Das Tapadia Vs. Goverdhan Das Partani, reported in 2000 (7) SCC 183 = 2000 AIR (SC) 2946, and contends that the date on which Magistrate has directed issuance of process i.e. 02.08.2008 shall be construed as the date of taking cognizance, which, according to him, is perfectly legal. 16 At this stage, I refrain from making any comment and express any opinion in that regard. It would be for the Magistrate to consider the aspect and after hearing the complainant, may pass appropriate orders. 6 17 In the facts and circumstances narrated above, Criminal Writ Petition is allowed. Order passed by Judicial Magistrate, First Class, Degloor directing issuance of process in S.C.C. No.280/2008 on 02.08.2008 as well as order passed by Additional Sessions Judge, Biloli in Criminal Revision Application No. 25/2008 on 13.01.2009, are quashed and set aside. The matter is remitted back to the Court of Judicial Magistrate, First Class, Degloor. The learned Magistrate, after ensuring compliance of provisions of Section 200 of Criminal Procedure Code and after recording verification statement of the complainant, shall proceed to take decision as regards issuance of process under Section 204 of the Criminal Procedure Code. 18 Rule is accordingly made absolute. (R.M.BORDE) JUDGE ******* adb/criwp11409