Criminal Application dismissed. Held that omission to detail cheque issuance in complaint does not vitiate Magistrate's order or prejudice applicant, who has opportunity to rebut presumption and provide evidence.
Criminal Application dismissed; ad-interim order vacated.
This page shows the compact analysis of this judgement. The full analysis — procedural history, issue-by-issue holdings with ratio and obiter, advocates, and paragraph-level evidence for every claim — is being added to the record in batches and will appear here when this judgement has been through it.
19.apl.161.12.doc
IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPLICATION NO. 161 OF 2012
Smt. Disha Wd/o Late Deven Malviya R/O. Nagpur ....Applicant. Versus Rajendra Shamlal Bhansali R/O: Pune and another ....Respondents.
Mr. S. S. Woditel a/w Mr. B. V. Phadnis for the Applicant. Mr. A. L. Gore for the Respondent No. 2. Mrs. S. V. Gajare-Dhumal, APP for the Respondent-State.
CORAM: S. C. DHARMADHIKARI, J. DATED : APRIL 10, 2013.
P.C.:
Having heard the learned counsel appearing on behalf of the Applicant at great length and perusing with his assistance the complaint filed against the Petitioner/Accused alleging offence punishable under Section 138 of the Negotiable Instruments Act, 1881, I am unable to accede to the submission that the complaint read as a whole does not disclose commission of any offence punishable under that provision.
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19.apl.161.12.doc
the charge. It is not as if the Applicant has no opportunity to rebut the presumption and particularly, under Section 138 of the Negotiable Instruments Act, 1881. Equally, the Applicant can always be cross-examined by the complainant and independent evidence led to demonstrate that the cheque was not issued for any legally enforceable liability or that if at all there was any liability, the said stood discharged. All such contentions are not affected and merely by an order of issuance of process. The Criminal Application is devoid of any merit and dismissed as such.
(S. C. DHARMADHIKARI, J.)
S. S. MORMARE
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2 issues framed by the court
Whether the complaint under Section 138 of the Negotiable Instruments Act, 1881, discloses commission of offence despite absence of details regarding issuance and cancellation of cheque in the complai
Whether the omission to plead circumstances of issuance of cheque by complainant vitiates the order of issuance of process.
1 provisions across 1 enactments
Smt. Disha Wd/o Late Deven Malviya
Rajendra Shamlal Bhansali
S. C. DHARMADHIKARI
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
