Quashed

Suresh Hariram Makhija v. Bajaj Electricals Ltd. and Ors.

Bombay HC10 Jul 2013APL/318/2012

Case brief

AI extract

What is this about?

The High Court quashed an order impleading the applicant as an accused in a cheque bounce case. The court held that Section 319 CrPC cannot be invoked to add an accused where statutory notice under Section 138 NI Act was not served on them, leaving the case's merits untouched.

What did the court decide?

The order impleading the Applicant in the prosecution is quashed and set aside.

Suresh Hariram Makhija Vs Bajaj Electricals Ltd. and Ors. — Cheque Dishonour | Bombay HC (2013)

¶1

8-apl318.12.sxw

¶2

ssm 1

¶3

IN THE HIGH COURT OF JUDICATURE AT BOMBAY

¶4

CRIMINAL APPELLATE JURISDICTION

¶5

CRIMINAL APPLICATION NO. 318 OF 2012

¶6

Suresh Hariram Makhija

¶7

....Applicant.

¶8

Vs.

¶9

Bajaj Electricals Ltd. & Ors.

¶10

....Respondents.

¶11

Mr. Pawan Mali i/by Mr. Kamlesh Mali for the Applicant. Mr. Subodh Deshi for Respondent No.1. Prosper D'Souza for Respondent No.2. Mr. S.S. Pednekar, APP for Respondent No.3.

¶12

CORAM: K.U. CHANDIWAL, J. DATE : 10 JULY 2013

¶13

P.C.:

¶14

Heard.

¶15

2 In proceedings under Section 138 of the Negotiable

¶16

Instruments Act, the Applicant was directed to be implead as an accused by order of learned Additional Sessions Judge, in Criminal Revision Application No. 811 of 2010, dated 17 August 2011.

¶17

3 The learned Additional Sessions Judge, while allowing the Revision, basically took recourse to Section 319 of the Code of

¶18

1/3

¶19

ssm 2 8-apl318.12.sxw

¶20

Criminal Procedure, which contemplates, in the course of any inquiry into or trial of, an offence, it appears from the evidence that any person not being the accused has committed any offence for which such person could be tried together with the accused, the Court may proceed against such person for the offence which he appears to have committed. Normally, there will not be a contest to the legal position and the rights of the Judge concerned to exercise the same. In the instant case, it is not a normal criminal prosecution, however, it deals with the prosecution for the offence punishable under Section 138 of the Negotiable Instruments Act. For facing the prosecution, the prerequisite is a statutory notice and the limitation indicated therein. There was no such service of statutory notice upon the Applicant Suresh Hariram Makhija.

¶21

4 Mr. Desai, learned counsel appearing for Respondent No.1 says that the notice was served upon the proprietary concern. However the notice, was indeed to the address of the Respondent No.2 Kishor Nagdev, which was his residential address. Statute obligates legal service to the Applicant Suresh.

¶22

2/3

¶23

ssm 3 8-apl318.12.sxw

¶24

5 There was no justification for the learned Judge to have exercised powers under Section 319 of the Code of Criminal Procedure, as the evidence was short to implicate even primarily to the Applicant Suresh to answer the liability for offence under Section 138 of the Negotiable Instruments Act, even if he was said to be drawer of the cheque. There is nothing to show, evidence suggest commission of offence by Accused-Applicant. Order is quashed and set aside. This Court has not expressed any opinion on the merits in the main prosecution.

¶25

3/3

Suresh Hariram Makhija v. Bajaj Electricals Ltd. and Ors.

Case brief

What is this about?

What did the court decide?

Suresh Hariram Makhija v. Bajaj Electricals Ltd. and Ors.

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

Issues for consideration

Statutes considered

Parties & counsel

Coram

Case details

Similar cases

Rajendra Kumar Kalicharan Varma Vs the State of Maharashtra and Ors.

Meherangiz M. Davar Vs the State of Maharashtra and Anr.

Badruddin P. Hirani and Anr. Vs Nanji Jivraj Karani and Anr.

Raju Vishnu Avhad Vs the State of Maharashtra

Anil Bhanudas Waghmode Vs the State of Maharashtra

Sarang Babanrao Bhutkar and Anr. Vs the State of Maharashtra