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2010 Supreme(Bom) 908

High Court of Judicature at Bombay
J.H. BHATIA
Neeta Mukesh Jain
Versus
The State of Maharashtra & Others
CRIMINAL APPLICATION NO.4510 OF 2009, CRIMINAL APPLICATION NO.4511 OF 2009, CRIMINAL APPLICATION NO.4512 OF 2009, CRIMINAL APPLICATION NO.4513 OF 2009
Decided on : 05-07-2010

Advocates appeared:
For the Applicant:Sandeep C. Kekane, i/b M.K. Kocharekar, Advocates.
For the Respondents: R1 A.A. Mane, APP.

Headnote:Criminal Procedure Code, 1973 - Sections 200 and 202-Private complaint-Dishonour of cheque-Com-plaint filed under Section 138 of Negotiable Instruments Act, 1881-Accu-sed residing at Sharjah-Verification statement of complainant and evidence of Bank Officer also recorded by trial Court in support of complaint before issuing process-An enquiry under Section 202 of Code against accused conducted by trial Court before issuing process-Held-Procedure prescribed under Sections 200 and 202 of Cr PC followed by trial Court.-It is further contended that Section 202 of the Criminal Procedure Code mandates that any Magistrate on receipt of complaint of an offence of which he is authorized to take cognizance, shall, in case where the accused is residing at a place beyond area in which he exercises jurisdiction postpone the issue of process against accused and shall enquire into the case himself or direct investigation to be made by a police officer for the purpose of deciding whether or not there is sufficient evidence for proceeding with the complaint. It is contended that the respondent No. 2 was residing in Sharjah. In the present case, Magistrate, before issuing process, not only recorded the verification statement of the complainant, but also recorded the evidence of the bank officer in support of the complaint. Thus it appears that he had made an inquiry under Section 202 of the Criminal Procedure Code, before issuing process against the accused. In view of this, Court finds no substance in the contention of counsel for the applicant that the procedure laid down under Sections 200 and 202 of Criminal Procedure Code was not followed.

       Negotiable Instruments Act, 1881 - Section 138-Criminal Procedure Code, 1973, Sections 202 and 204-Dishonour of cheque-Complaint-Issuance of process-Loan advanced at request of accused but amount of loan handed over to her father on her request-Cheques issued towards repayment of loan by accused-Held-Merely because complainant used word "security" in his verification statement, it not means that cheques not issued in discharge of debt or liability-Order directing issuance of process just and proper.-In the present case, the case of the complainant is simple and straight forward and according to him the accused approached him for loan and agreed to repay the amount. On her request the amount of loan was handed over to her father and she issued cheques for repayment of the said loan. As she failed to make the payment, cheques were presented for encashment and were dishonoured. In the verification statement, the complainant stated that towards security Mrs. Neeta Jain had given cheques for the different amounts. Merely because the word "security" has been used, it does not mean that the cheques were not issued in discharge of the debt or liability. If whole of the complaint and whole of the verification statement are read carefully, it becomes clear that the loan was advanced at the request of accused but the amount was handed over to her father on her request and towards the repayment of that loan, cheques were issued. The word "security" used in above referred portion does not mean that it was not issued for discharge of debt and that cheque was issued as security of some other transaction or contract between the parties.

Judgment :

1. This group of applications may be disposed off by common order as the parties are same and the question involved in all these applications is also same. Heard learned counsel for the parties.

2. Respondent No. 2 in each of all these applications is original complainant and the applicant is the original accused. The Complainant had filed complaints under section 138 of the Negotiable Instrument Act on 3.8.2005 and the same were registered as Criminal Case No.5343/SS/2005, 5344/SS/2005, 5345/SS/2005 and 5346/SS/2005. It was the case of the complainant/Respondent No.2 in each of the complaint that the applicant/accused had approached them for loan and therefore, they have given loan of Rs.2,00,000/-, Rs.2,00,000/-, Rs.2,50,000/- and Rs.1,50,000/- respectively.

3. The applicant issued four different cheques being cheque No.054816 dated 12.4.2005 for Rs.2,00,000/-, cheque No.054817 dated 21.4.2005 for Rs.2,00,000/-, cheque No.054818 dated 21.4.2005 for Rs.1,50,000/-and cheque No.054819 dated 5.5.2005 for Rs.2,50,000/-. All these cheques were presented and were dishonored on different dates. Three of them were dishonored on 28.5.2005 and one was dishonored on 14.6.2005. On getting intimation, the complainant in each case issued demand notice dated 25.6.2005 to the accused. The Notices were received and the accused also replied through advocate on 8.7.2005. As the payment was not made, on 3.8.2005, complaints were filed in each case. On 3.8.2005, the Metropolitan Magistrate of the 7th Court, Dadar, directed to issue process against accused in each of the said case.

4. That order was challenged by the applicant by filing revision applications. According to her, she had shifted to Sharjah to live with her husband on 16.11.2001 and is living there with her husband and children. According to her, she was not in Bombay when the loan was allegedly advanced. She also denied that she had handed over the disputed cheques in favour of complainant in April, 2004. She contended that she used to keep her blank cheques with her father and those cheques appears to have been misused. It was also contended that the learned Magistrate had issued process without following the procedure laid down under section 200 and 202 of Criminal Procedure Code, because the process was issued without recording verification statement of the complainant and without holding any inquiry. It was contended that it was necessary to conduct enquiry because the accused is not living within the territorial jurisdiction of the learned Magistrate. The learned Additional Sessions Judge by order dated 23.1.2008, allowed those revision applications and set aside the order passed by the Magistrate issuing process and directed to proceed with the matter from the stage of verification statement and to take steps as provided under the amended section 202 of Criminal Procedure Code. The accused, being not satisfied with that order in the revision application, filed Writ Petition Nos.319 of 2008, 320/2008, 321/2008 and 322 of 2008. However, those writ petitions were dismissed by this Court on l8.7.2008 as this Court found that the order passed by the Additional Sessions Judge to follow the procedure laid down in Criminal Procedure Code needed no interference.

5. It appears that after the said order, on l8.9.2008, the verification statement of the complainant was recorded. On behalf of complainant the Officer from the drawee bank i.e. Bank of Baroda, Jacob Circle Branch, was examined. After recording verification statement and evidence under section 202 of Cr. Pro Code, , the learned Magistrate passed fresh order dated 24.4.2009, to issue process against the accused u/s 138 of Negotiable Instrument Act and the said order in each of the four cases is challenged in the present four applications under section 482 of the Criminal Procedure Code.

6. It is contended on behalf of the applicant that the verification statement of the complainant shows that the amount of loan was pai

















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