Dismissed

Ashwin Bhikhabhai Patel and Ors. v. the State of Maharashtra and Anr.

Bombay HC4 Apr 2009APPLN/92/2009

Case brief

AI extract

What is this about?

This court dismissed a criminal application challenging an order issuing process against directors of a company under the Negotiable Instruments Act. The court held the order was not perverse given the company's notice was acknowledged and directors shared the same address. No further legal substance was found in the application.

What the court decided

AI extract

Ashwin Bhikhabhai Patel and Ors. Vs the State of Maharashtra… — Cheque Dishonour | Bombay HC (2009)

¶1

 IN THE HIGH COURT OF JUDICATURE AT BOMBAY

¶2

 CRIMINAL APPELLATE JURISDICTION

¶3

 CRIMINAL APPLICATION No. 92 OF 2009

¶4

 Ashwin Patel and others. ..Applicants.

¶5

Vs.

¶6

 The State of Maharashtra & Anr ..Respondents.

¶7

 Mr Uday P. Warunjikar, Advocate for the
 Applicants.

¶8

 Mrs Pritha M. Dave for Respondent No.2.

¶9

 Ms S.D. Shinde, A.P.P. for Respondent No.1.

¶10

CORAM : A.R. JOSHI,J.

¶11

DATED : 4th April,2009.
P.C.:-

¶12

 1. It is the criminal application
 preferred by original accused Nos. 2, 3 and 4
 challenging the order of learned Sessions
 Judge, Mumbai (Revisional Court), dated
 7.11.2008, by which the Criminal Revision
 Application No. 893 of 2008 preferred before
 the revisional Court was rejected. Said
 criminal revision before the Sessions Court was
 preferred as the applicant accused Nos. 2, 3
 and 4 were aggrieved by an order dated
 10.6.2008 passed by the learned Metropolitan’s
 10th Court at Andheri, Mumbai in C.C. No.

¶13

 711/SS/2008.

¶14

 2. By the said order process was directed
 to be issued against the present applicants for
 the offence punishable under Sections 138 and
 141 of the Negotiable Instruments Act,1881 (the
 N.I.Act for short).

¶15

 3. It appears that the applicants have
 challenged the very order of issuance of
 process and it was taken to the Sessions Judge
 in Criminal Revision and then taken before this
 Court under the provisions of Section 482 of
 the Code of Criminal Procedure.

¶16

 4. Heard rival submissions at length.

¶17

 5. It is matter under section 138 of the

¶18

 N.I. Act, initially, filed against seven
 accused, accused no.1 being a company and
 accused nos. 2 to 4 being the Directors of the
 Company. Allegedly, there were number of
 cheques issued by accused no.1-company signed
 by accused nos. 2 and 4 for and on behalf of
 accused no.1 company and they were drawn on
 different dates. All the said cheques were

¶19

( 3 )

¶20

 dishonoured and the total amount was running to
 the extent of Rs. 94 lakhs and some odd
 amount. However, the complaint under Section
 138 of the N.I.Act was filed only for dishonour
 of cheques amounting to Rs. 51,66,000/-
 considering time limit required for lodging
 such complaint.

¶21

 6. On going through the contents of the
 complaint and the accompanying documents
 learned Metropolitan Magistrate issued process
 against all the co-accused. Main thurst of the
 argument on behalf of the present applicants
 i.e. accused Nos. 2, 3 and 4 is three fold.

¶22

 7. Firstly, it is submitted that there was
 no any acknowledgment, admittedly, received by
 the complainant as mentioned in the complaint
 itself as to service of demand notice as
 against accused no.3 and as such on the said
 position itself there should not have been any
 cause of action and as such the process should
 not have been issued.

¶23

( 4 )

¶24

 8. Secondly, it is argued that there are
 no specific allegations against accused no.4 as
 he was engaged in day to day business of
 accused no.1 company and as such again on this
 count also there should not have been any
 issuance of process.

¶25

 9. Thirdly, it is mentioned that the

¶26

 Revisional Court had relied on the extraneous
 material i.e. registration certificate of
 accused no.1-company and further came to the
 conclusion that accused Nos. 2 to 4 were the
 Directors and responsible for the management of
 accused no.1-company. It is further submitted
 on behalf of the applicants that such document
 should not have been looked into by the
 revisional court, as it was not available
 before the learned Metropolitan Magistrate at
 the time of issuance of process.

¶27

 10. It is certain that the issuance of

¶28

 process is an ordeal to be carried out after
 going through the averments in the complaint
 and after scrutiny of the documents annexed

¶29

( 5 )

¶30

 thereto. If at all, the registration

¶31

 certificate of accused no.1-company is not to

¶32

 be seen then also whether there was case for
 issuance of process, is required to be seen and
 only because the revisional court i.e.
 Sessions Judge, Mumbai dealt with such aspect
 of contents of registration certificate, only
 on that count it cannot be said that earlier
 order of M.M.Court of issuance of process is
 required to be struck down.

¶33

 11. Admittedly, as per the averments in the
 complaint, accused nos. 2 to 4 were the
 Directors of the company during the relevant
 period of issuance of impugned cheques and it
 is also admitted position that accused No. 2

¶34

 is the signatory of the said cheques and such
 signatures were made for and on behalf of
 accused no.1 company as authorized signatory.
 From the plain reading of the address of
 accused nos. 3 and 4 mentioned in the title of

¶35

 the complaint, address is same. Same is the
 address of accused no.1 company being "H/O.
 Vidyanand Verma, Chowk Bazar, Bihar Sharif,

¶36

( 6 )

¶37

 Nalanda, Bihar-803101".

¶38

 12. Considering such factual position and
 considering that there was issuance of notice
 against accused no.1 company and
 acknowledgement to that effect received by the
 complainant and also the factual position as to
 issuance of notice specifically against accused
 no.2 and his reply to the complainant and
 considering that the addresses of accused nos.
 3 and 4 are same as that of accused no.1
 company, the arguments advanced on behalf of
 the applicants that there was no any notice
 received by accused no.3, cannot sustain. In
 other words, the reasoning given by the
 revisional court and the view taken by the
 Metropolitan Magistrate in issuance of process,
 after presuming compliance of the requisite
 ingredients for the offence punishable under
 Sections 138 and 141 of the N.I.Act, the
 impugned order cannot be termed as perverse and
 that in the opinion of this Court under the
 powers vested as per Section 482 of the Cr.P.C.
 there is nothing, much less illegal, warranting

¶39

( 7 )

¶40

 to interfere with such order of issuance of

¶41

 process.

¶42

 13. In the result, there is no substance in
 criminal application No. 92 of 2009 and same
 is dismissed and disposed of.

¶43

 14. All the interim orders, if any, stand
 vacated.

¶44

 15. Upon request made on behalf of the
 applicants, operation of this order is stayed
 for a period of four weeks from today.

¶45

(A.R.JOSHI,J.)

Ashwin Bhikhabhai Patel and Ors. v. the State of Maharashtra and Anr.

Case brief

What is this about?

What the court decided

Ashwin Bhikhabhai Patel and Ors. v. the State of Maharashtra and Anr.

Case brief

What is this about?

What the court decided

A compact analysis

Issues for consideration

Statutes considered

Parties & counsel

Coram

Case details

Similar cases

Jairaj Vallabhdas Java Vs the Chief Enforcement Officer and Anr.

Prakash M. Pai Vs the State of Maharashtra and Ors.

Balaram Dharam Patil Vs the State of Maharashtra and Ors.

Manubhai Mangaldas Securities Pvt. Ltd. and Ors. Vs the State of Maharashtra and Ors.

Yasin Sheku Nigewan Vs the State of Maharashtra

M/S. Dhanwardhini Investment and Finance Pvt. Ltd. and Ors. Vs Arjun Haribhau Chaphekar and Anr.