6-apeal.289.2021...doc

IN THE HIGH COURT OF JUDICATURE AT BOMBAY

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO.289 OF 2021

Prakash Shrivastava

...Appellant

Versus

Shraddha Suresh Bane

Through her Constituted Attorney -

Suresh Ganpatrao Bane and Anr.

...Respondents

Mr. Vikram Sutaria a/w Mr. Mithilesh Mishra, for the Appellant.

Mr. Tanmay T. Jadhav a/w Mr. Mohan Talati, for the Respondent

No.1.

Mr. V. B. Konde-Deshmukh, A.P.P for the Respondent No.2 – State.

CORAM : REVATI MOHITE DERE &

V. G. BISHT, JJ.

DATE : 14^th JUNE 2022

P.C. :

1.

At the outset, learned counsel for the appellant seeks leave

to amend the prayer clause. Leave granted. Amendment to be carried

out forthwith.

2.

Heard learned counsel for the parties.

N. S. Chitnis

1/8

NISHA

SANDEEP

CHITNIS

Digitally signed by

NISHA SANDEEP

CHITNIS

Date: 2022.06.17

14:29:24 +0530

6-apeal.289.2021...doc

3.

By this appeal, the appellant has sought the following

substantive relief:-

“c.

This Hon'ble Court be pleased to quash and set

aside the orders dated 5/02/2021 and 26/02/2020

passed by the Ld. Trial Court in Special Case MPID

No. 11/2016, to the extent that it directs the

Appellants to remain present before the Ld. Trial

Court and further directs the Respondent No. 2 to

investigate and take steps under the MPID Act,

1999.”

4.

Learned Counsel for the appellant submits that the learned

Special Judge who has passed the aforesaid impugned orders has

misdirected himself and has misinterpreted the order dated 26^th June

2014 passed by this Court (Coram: Mrs.Mridula Bhatkar, J.) in

Criminal Application No.2007 of 2004. He submits that infact, when

the said order was passed the proceeding before the MPID Court had

already come to an end i.e. on 2^nd April 2007, however, as neither the

learned counsel for the applicants nor the learned counsel for the

respondent Nos.1 and 2 in the said application were aware of the

same, the same was not brought to the notice of this Court, pursuant

to which, the said order was passed. Mr. Sutaria, further submits that

N. S. Chitnis

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6-apeal.289.2021...doc

the proceeding presently pending before the learned Special Judge is a

proceeding under Section 138 of the Negotiable Instruments Act (N.I.

Act). He submits that merely because the said case i.e. 138 case was

transferred by this Court to the learned Special Judge before whom

the MPID case was pending, cannot be a ground for considering the

said 138 case as a case under the Maharashtra Protection of Interest of

Depositors Act (MPID Act). He submits that the learned Special Judge

will have to necessarily try the said 138 case, as a case under Section

138 of the N.I. Act, and, not under the MPID Act.

5.

Learned Counsel for the respondent No.1 vehemently

opposes the appeal. The learned counsel for the respondent No.1 has

tendered an affidavit-in-reply on behalf of the respondent No.1 dated

14^th June 2022. The same is taken on record. According to the

learned counsel for the respondent No.1, there is no impediment for

the learned Special Judge to direct the 138 case to be investigated as a

MPID case.

N. S. Chitnis

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6-apeal.289.2021...doc

6.

Perused the papers. A private complaint was filed by the

respondent No.1 as against the appellant and others, alleging an

offence punishable under Sections 138 r/w 141 of the N.I. Act. The

appellant is the original accused No.3 in the said case i.e. C.C.

No.589/SS/2002. It appears that the said case i.e. the 138 case was

initiated by the respondent No.1 as two cheques issued by Golden

Glades Limited were dishonoured in 2002. It appears that the said

case was filed by the respondent No.1 i.e. for dishonour of the cheque

in the Bandra Court having competent jurisdiction to hear and decide

the case. It also appears that during the said period i.e 2002, a

complaint/FIR i.e. C.R. No.62 of 2002 was l