Advocates:
['ADE RAVINDRA B', 'COPY SERVED ON PP', '', 'R/ SERVED', 'SHINDE ASHISH B R NO']

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IN THE HIGH COURT OF JUDICATURE AT BOMBAY

BENCH AT AURANGABAD.

CRIMINAL WRIT PETITION NO. 1155 OF 2014

Shivkumar S/o Anandrao Nilgirwar,

Age 40 years, Occ. Service,

R/o House No. 9/24, Velmapura,

Kinwat, Tq. Kinwat, Dist. Nanded.

...Petitioner

Versus

1.

The State of Maharashtra.

2.

Sow. Kiran s/o Laxmikant Sundargirwar,

Age 50 years, Occ. Business,

R/o Chetna Kirana & Ladies Emporium,

Old Cloth Line, Kinwat, Tq. Kinwat,

District Nanded.

...Respondents

.....

Shri. Ravindra B. Ade, Advocate for the petitioner

Shri. S. G. Nandedkar, APP for respondent/State

Shri. Ashish B. Shinde, Advocate for respondent No. 2

.....

CORAM : SMT. SADHANA S. JADHAV, J.

DATED : MARCH 30^TH, 2015.

ORAL JUDGMENT:-

.

Heard. Rule. Rule made returnable forthwith

with the consent of the parties.

2.

The present petitioner happens to be the original

complainant in S.C.C. No. 335 of 2012, filed by the petitioner

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against respondent No. 2, for offence punishable under

Section 138 of the Negotiable Instruments Act, 1881 (in

short “the NIA”). On 3^rd April, 2014, the learned Judicial

Magistrate First Class, seized with the matter, was apprised

of the fact that there was every possibility of amicable

settlement and hence, the learned JMFC was pleased to

refer the matter to the Mediator. The complainant and the

accused had consented for going through the process of

mediation. On 14^th July, 2014, the learned JMFC had

observed that, the accused had not compounded the case

since 24^th July, 2014, within two-three dates from hearing

and hence she was saddled with penalty of 10% of cheque

amount. The learned JMFC had disposed of the complaint,

acquitted the accused of the offence punishable under

Section 138 of the NIA. The accused was directed to pay

penalty of 10% of cheque till 30^th July, 2014.

3.

Being aggrieved by the said order, the original

accused had filed Criminal Revision Application No. 72 of

2014. The learned Sessions Judge, Nanded, vide judgment

and order dated 4^th September, 2014, was pleased to allow

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the revision and set aside the order dated 14^th July, 2014.

The learned Sessions Judge had further passed an order as

follows:

“The Ld. Magistrate shall direct Income Tax

Department

to

enquire

whether

respondent/complainant has paid Income Tax

on the amount of Rs. 5,00,000/- allegedly paid

to the petitioner for which the disputed cheque

was issued.”

Being aggrieved by clause '03' of the operative

order dated 4^th September, 2014, the original complainant

has filed the present writ petition.

4.

The learned Counsel for the petitioner rightly

submits that, the proceedings under Section 138 of the NIA

were compromised between the parties. The complainant

had withdrawn the complaint in good faith to continue to

have good relations with the accused – respondent. It was

not necessary for the learned Sessions Judge to enquire as

to whether the said amount of Rs. 5,00,000/- was even

disclosed to the Income Tax Authorities as, that would be a

matter of evidence, which would be subject matter of the

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trial under Section 138 of the NIA. In the present case, the

said direction is unwarranted. It was a private transaction.

5.

In the eventuality that the said amount is not

disclosed in Income Tax Returns, the Income Tax Authority

would take appropriate action in accordance with law as

and when time arises. The direction passed by the Sessions

Judge was without any jurisdiction and was not in

consonance with any provisions of law and hence, the said

clause '03' of the order dated 4^th September, 2014, deserves

to be quashed and set aside. In view of this, following

order is passed.

ORDER

(i)