Dismissed

Ramkumar Sachanand Tejwani v. the Nashik Merchant Co-Op. Bank Ltd. and Anr.

Bombay HC8 Jul 2010WP/935/2010

Case brief

AI extract

What is this about?

This single judge dismissed a criminal writ petition challenging an order of issuance of process under Section 138 NI Act, holding that the Magistrate had recorded verification despite the affidavit in lieu, that cross-examination followed, and stay was rejected as it aimed at protracting the trial.

What did the court decide?

Petition dismissed; application for stay rejected.

Ramkumar Sachanand Tejwani Vs the Nashik Merchant Co-Op… — Cheque Dishonour | Bombay HC (2010)

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IN THE HIGH COURT OF JUDICATURE AT BOMBAY

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CRIMINAL APPELLATE JURISDICTION

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CRIMINAL WRIT PETITION NO. 935 OF 2010

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Shri Ramkumar Sachanand Tejwani...Petitioner
vs.
The Nashik Merchant Co-op.Bank
Limited & Anr....Respondents

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Mr.Ashok B. Tajane for the Petitioner.
Mrs.P.P. Bhosale, APP for the State.

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 CORAM : V.M. KANADE, J.

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 DATED : JULY 8, 2010

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P.C. :-

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1Heard Counsel for the petitioner. None

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appears on behalf of the respondents though they are
served.

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2The petitioner is challenging an order of

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issuance of process by the learned Magistrate on a
complaint filed under Section 138 of the Negotiable

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Instruments Act.

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3It is submitted that the learned Magistrate

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has not followed the procedure laid down under

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Section 200 of the Cr.P.C. and on the basis of
affidavit in lieu of verification, process has been
issued. He submitted that the Division Bench of this
Court in the case of Maharaja Developers & Another

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v/s. Udaysing S/o. Pratapsinghrao Bhonsle & Anr.,
reportedin2007ALLM.

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R. (Criminal) 1339 has held that issuance of process
without complying provisions of Section 200 of the

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Cr.P.C. is illegal. It was submitted that the
Division Bench also observed that the Magistrate is
obliged and duty bound to examine on oath the
complainant and the witnesses before issuance of
process. He also invited my attention to the
Roznama. He submitted that on 10th July, 2008, the
Roznama reads as under :-

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�Resumed Today.

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Complainant and his Advocate present.
Verification filed, Order below Exh.1.
Issue process against accused on P.P.�

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the submission made by the learned Counsel for the

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petitioner. There cannot be any doubt regarding the

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ratio of the judgment in the caseMaharaja

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Developers (supra). However, in the present case, it

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appears that the verification was recorded by the
Magistrate which is evident from the statement which
is annexed at Exhibit-E page 51. It is no doubt true

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that the complainant appears to have filed an
affidavit in lieu of verification which was also

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taken on record. Thereafter, however, the learned
Magistrate recorded verification on 10th July, 2008.

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Merely because in the Roznama it is mentioned that
verification is filed, no inference can be drawn

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that the learned Magistrate was pleased to issue

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process on the basis of the verification affidavit
which was filed on 21st January, 2008 along with the
complaint. Secondly, the complaint was filed in

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2008, process was issued on 10th July, 2008 and now
the complainant has filed his affidavit in lieu of
evidence and is to be cross-examined, the plea of
the petitioner has already been recorded and hence,
at this stage, it is not possible to interfere with
the order of issuance of process.

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5The petition, therefore, is dismissed.

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6At this stage, the learned Counsel for the

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petitioner seeks stay of this order. In my view, the
present application has been filed only for the

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purpose of protracting the criminal trial which has

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already reached the stage of final hearing.
Therefore, in my view, this is not a fit case for
granting stay to this order. Application for stay is
rejected.

Ramkumar Sachanand Tejwani v. the Nashik Merchant Co-Op. Bank Ltd. and Anr.

Case brief

What is this about?

What did the court decide?

Ramkumar Sachanand Tejwani v. the Nashik Merchant Co-Op. Bank Ltd. and Anr.

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

Issues for consideration

Cases cited

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