2-WP-1795-2022.doc

VRJ

IN THE HIGH COURT OF JUDICATURE AT BOMBAY

CRIMINAL APPELLATE JURISDICTION

WRIT PETITION NO.1795 OF 2022

Devendra Arvindbhai Parmar

… Petitioner

V/s.

The State of Maharashtra & Anr.

… Respondents

Mr. Satyadev D. Joshi for the petitioner.

Mr. A.R. Patil, APP for the respondent No.1/State.

Mr. Gaurav V. Gokhale for respondent No.2

CORAM :AMIT BORKAR, J.

DATED

:NOVEMBER 14, 2022

P.C.:

1.

Rule. Rule is made returnable forthwith by consent of the

parties.

2.

The order of issuance of process in a proceeding under

section 138 of the Negotiable Instruments Act, 1881 is the subject

matter of this writ petition. The grounds raised in the petition is

that the notice mandatorily required under section 138 of the

Negotiable Instruments Act, 1881 has not been issued to the

drawer.

3.

The facts relevant for the adjudication of the present petition

are as under. The complainant is a proprietary firm having name

M/s. Essar Electro Control of which one Mr. Rahul M. Shah is the

proprietor. The accused is the proprietary firm of which, according

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2-WP-1795-2022.doc

to the complainant, one Mr. Devendra Aravindbhai Mistry is a

proprietor. According to the accused, it is Mr. Devendra

Aravindbhai Parmar who is the proprietor. The transaction

between the parties was sale and supply of control panel

accessories and hardware goods which were received by M/s.

Neutron Engineering Corporation Limited under invoices.

Towards the liability incurred out of the said transactions, three

(3) cheques bearing Nos.511043 dated 15th April 2020 in the

amount of Rs.1,31,097/-, 511061 dated 27th April 2020 in the

amount of Rs.13,009/- and 680435 dated 1st May 2020 in the

amount of Rs.8,208/- were issued.

4.

The complainant deposited the cheques with the banker,

which were returned dishonoured with the remark ‘

payment

stopped by the drawer’

and ‘funds insufficient’

.

5.

The complainant, therefore, issued a demand notice dated

21^st July, 2020 by registered post acknowledgment due. The copy

of the notice is produced on record at page 65. The relevant

portion of the notice reads thus:

“To,

Mr. Sameer Shah,

M/S. Neutron Engineering Corporation,

E-1, Shree Ram Amin Industrial Estate,

Ram Mandir Road, Goregaon (W),

Mumbai-400 104.”

6.

Since the amount as demanded under the said notice was

not paid, a complaint was filed by the respondent. The learned

Magistrate by the impugned order issued process against the

petitioner. The said order of issuance of process is the subject

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matter of challenge in the present petition.

7.

The learned Advocate for the petitioner invited my attention

to the title of the notice which mentions name of Mr. Sameer Shah

as proprietor of M/s. Neutron Engineering Corporation. He also

invited my attention to the name of the accused which has been

amended to incorporate the name of Devendra Aravindbhai Mistry

in place of Sameer Shah. Therefore, the cause-title of the

complaint as today does show Devendra Aravindbhai Mistry as

accused. It is, therefore, submitted that the notice as mandatorily

required under section 138 of the Negotiable Instruments Act,

1881 has not been issued to the drawer.

8.

Per contra, the learned advocate for the complainant

submitted that the notice was sent on the correct address of

proprietary firm. It is also submitted that the validity of notice is a

triable issue which needs to be considered at the time of trial of

the complaint. He submitted that the invoices have been signed by

Mr. Sameer Shah.

9.

Reliance upon unreported judgment of Apex Court in

Criminal Appeal No.1325 of 2019 (Kishore Sharma Vs.

Sachin Dubey and the judgment of Himachal Pradesh) decided on

3rd September 2019 and Criminal Miscellaneous Petition

No. 176 of 2022 (Bhim Singh Vs. Natthu Singh) decided on 11^th

March, 2022.

10. It is well settled principle of law that following are the

components of the offence under section 138 of the Negotiable

Inst