Dismissed

Shamali Jagannathi Darak v. Pravin Pandurangrao Mugle and Anr.

Bombay HC11 Jun 2012WP/286/2012

Case brief

AI extract

What is this about?

This petition challenged a J.M.F.C. order in a Section 138 NI Act case. The High Court rejected the petition, holding that the defence that the cheque was blank and given as security remained unproven. The court distinguished cited precedents and ruled that the complainant's ignorance regarding who filled the cheque contents did not enable the accused to shift the burden, warranting dismissal of t

What did the court decide?

Writ Petition rejected; no case made out for issuing notice to respondent.

Shamali Jagannathi Darak Vs Pravin Pandurangrao Mugle and Anr. — Cheque Dishonour | Bombay HC (2012)

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criwp286-12.odt

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IN THE HIGH COURT OF JUDICATURE AT BOMBAY, BENCH AT AURANGABAD

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CRIMINAL WRIT PETITION NO.286/2012

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Shamali w/o Jagannathji Darakh Age -58 years, Occ-Service, R/o Madansuri, Tq. Nilanga Dist.Latur. .. PETITIONER [ORIG.ACCUSED]

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VERSUS

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1] Pravin s/o Pandurangrao Mugle Age 36 years, Occ-Business Resident of Omerga Dist.Osmanabad. .. RESPONDENT [ORIG.COMPLAINANT]

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2] State of Maharashtra Through its Secretary, Home Department, Mangralaya, Mumbai. [Copy to be served on the P.P. High Court of Bombay, Bench at Aurangabad.] .. RESPONDENT

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Mr.B.R.Surwase,Adv. for petitioner Mr.B.J.Sonawane,A.P.P. for State.

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2 criwp286-12.odt

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CORAM : T.V.NALAWADE,J. DATE : 11TH JUNE 2012.

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ORDER :

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1] The petition is filed to challenge the order of J.M.F.C. Omerga passed in S.C.C. No.243/2008 at Exh.93. Private complaint is filed by respondent no.1 for offence punishable under Section 138 of Negotiable Instruments Act. The case is substantially part heard.

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2] The accused has taken defence that the cheque which was signed was given by way of security to the complainant and the complainant has misused the cheque. It is also the case of the accused that the cheque was blank. In the cross examination, the complainant has denied that the contents of the cheque are filled in by him. He has shown ignorance as to whether contents of the cheque are filled by the accused or not. He has however, admitted that the cheque was not written by the complainant in his

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3 criwp286-12.odt

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presence.

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3] In view of the aforesaid facts and circumstances, application at Exh.93 was moved by the accused and a prayer was made for sending samples to handwriting expert, of both accused and complainant alongwith cheque so as to ascertain as to who has filled in the contents. As the accused has admitted signature on the cheque, it would not matter much as to who filled the contents of the cheque. In view of Section 20 of Negotiable Instruments Act, when a cheque which is signed by the drawer is handed over, authority is given to the payee to fill the portion, which is not filled by drawer. For the petitioner, two reported cases were cited : (1) 2008 All M.R. (Cri) 1945 (S.C.) [T. Nagappa V/s Y.R.Murlidhar and (2) 2007 All M.R. (Cri) 820 (S.C.) [Mrs. Kalyani Baskar Vs. Mrs.M.S.Sampoornam]. The facts of these two cases are totally

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different and so these cases are of no use to the petitioner.

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4] In view of these circumstances, nothing can be achieved

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even if there is a opinion of handwriting expert that the contents are not written by accused or the contents are filled by complainant. The defence which is taken by accused needs to be proved by the accused and the admission of the complainant that he does not know as to who has filled in the contents cannot help accused in view of the provisions of Section 20 of Negotiable Instruments Act. So, this Court holds that there is no case made out even for issuing notice to respondent and Petition stands rejected.

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[T.V.NALAWADE,J.]

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umg/criwp286-12

Shamali Jagannathi Darak v. Pravin Pandurangrao Mugle and Anr.

Case brief

What is this about?

What did the court decide?

Shamali Jagannathi Darak v. Pravin Pandurangrao Mugle and Anr.

Case brief

What is this about?

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