:1:

IN

IN

IN THE HIGH COURT OF JUDICATURE AT BOMBAY

THE HIGH COURT OF JUDICATURE AT BOMBAY

THE HIGH COURT OF JUDICATURE AT BOMBAY

CRIMINAL

CRIMINAL

CRIMINAL APPELLATE JURISDICTION

APPELLATE JURISDICTION

APPELLATE JURISDICTION

CRIMINAL

CRIMINAL

CRIMINAL WRIT PETITION NO.695 OF 2006

WRIT PETITION NO.695 OF 2006

WRIT PETITION NO.695 OF 2006

AND

AND

AND

CRIMINAL

CRIMINAL

CRIMINAL WRIT PETITION NO.696 OF 2006

WRIT PETITION NO.696 OF 2006

WRIT PETITION NO.696 OF 2006

DSS Mobile Communications Ltd.& ors. ... Petitioners in

both the Petitions.

V/s.

M/s.Indtek Finance and Holdings

Pvt. Ltd. & Anr.

... Respondents in

both the Petitions.

Mr.Shirish Gupte, Senior Advocate with Mr.R.R. Mishra,

for the Petitioners.

Mr.Kumar Tolani,i/b. Nankani & Asst.for Respondent No.1.

Mr. A.S. Shitole, A.P.P. for the State.

CORAM

CORAM

CORAM : A.S. OKA, J.

: A.S. OKA, J.

: A.S. OKA, J.

DATE

DATE

DATE : AUGUST 29, 2006.

: AUGUST 29, 2006.

: AUGUST 29, 2006.

P.C.

P.C.

P.C. : :

:

1.

On

the

last

date

the

submissions

of

the

learned

Senior

Counsel appearing for the Petitioners were fully heard.

2.

The

Petitioners

are

accused

in

the

two

complaints

filed

by

the

first

Respondent

under

Section

138

of

the

Negotiable

Instruments

Act,

1881.

On

the

two

complaints

filed

by

the

first

Respondent,

the

learned

Magistrate

issued

process.

The

Petitioners

filed

Revision

Applications

before

the

Sessions

Court

for

challenging

the

orders issuing process. The Revision Applications have

been dismissed by the learned Additional Sessions Judge.

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3.

The

learned

Senior

Counsel

appearing

for

the

Petitioners

submitted

that

the

Canara

Bank

has

issued

confirmation

letters

recording

that

the

cheques

which

are

subject

matters

of

the

complaints

filed

by

the

first

Respondent

have

not

been

issued

to

the

Petitioners.

He

pointed

out

that

even

before

notice

dated

13th

August

1999

was

issued

by

the

first

Respondent

on

the

basis

of

which

the

complaints

were

filed

by

the

first

Respondent,

a

private

complaint

was

filed

by

the

Petitioners

against

the

first

Respondent

for

offences

punishable

under

Sections

465,

467,

468,

471

read

with

120

B

of

the

Indian

Penal

Code.

He

submitted

that

process

was

issued

on

the

said

complaint.

He,

therefore,

submitted

that

process

could

not

have

been

issued

on

the

complaints

filed

by

the

first

Respondent in as much as the complaints are based on the

cheques which were never issued by the Petitioners.

4.

I

have

considered

the

submissions.

For

the

purposes

of

ascertaining

whether

a

case

is

made

out

for

issuing

process

on

a

complaint

under

Section

138

of

the

Negotiable

Instruments

Act,

1981,

the

learned

Magistrate

is

required

to

read

the

complaint

as

a

whole

and

find

out

whether

ingrediants

of

the

offence

are

made

out.

In

the

present

case,

on

plain

reading

of

the

complaints,

ingrediants

of

the

offence

under

Section

138

are

clearly

made

out.

What

has

been

argued

before

this

Court

constitutes

defence

of

the

present

Petitioners

to

the

complaints.

Considering

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the

presumption

under

Section

118

and

Section

139

of

the

said

Act,

no

fault

can

be

found

with

the

order

issuing

process. It is for the Petitioners to establish their

defence at the time of trial.

5.

Hence,

no

case

is

made

out

for

interference.

Petitions

are

rejected.

It

is

made

clear

that

all