Partly allowed

Uni Multi Trade India Pvt.Ltd and Others v. Dr.Sonal Prajwal Mithawala and Another

Bombay HC26 Feb 2014WP/80/2014

Case brief

AI extract

What is this about?

In this criminal writ petition filed by accused persons in a cheque-bounce case, the High Court held that the Magistrate erred in issuing process without holding an inquiry under Section 202 of the CrPC to assess the grounds for proceeding. While the order was set aside, the complaint was not quashed as it disclosed the essential ingredients of the offence.

What did the court decide?

The order issuing process is set aside. The Magistrate is directed to hold an inquiry under Section 202 of the CrPC. The complaint cannot be quashed as it discloses the ingredients of the alleged offe

Uni Multi Trade India Pvt.Ltd and Others Vs Dr.Sonal Prajwal… — Cheque Dishonour | Bombay HC (2014)

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

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APPELLATE SIDE JURISDICTION

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CRIMINAL WRIT PETITION NO.: 80 OF 2014

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***

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1.	UNI Multi Trade India Pvt. Ltd. Add.D-13,Flat No.604, Rutu Estate, Ghodbhandar Road, Patlipada Thane (W), Thane Mumbai, Rep. by its Managing Director.
2.	Arvind Ramkrishna Nene, Age: 35 years, Occu.: Business, Managing Director of UNI Multi Trade India Pvt. Ltd. Flat No.302, Trinetray Apartment, Somalwada Nagpur.
3.	Mrs. Gayatri Arvind Nene, Age: 31 years, Occu.: Housewife, As above.
4.	M/s Global Biuotech, D-t, Rutu Estate, Ghodbandar Rd. Patlipada, Thane (W), Thane Mumbai Rep. By its CEO Mr. Arvind R. Nene. ...	PETITIONERS.
	Versus
1.	Dr. Sonal W/o Prajwal Mithawala Age: 49 years, Occu.: Business, Prop: M/s Mahalaxmi Agencies, Shop No.4, Sudha-Gauri Arcade, Rokadiya Hanuman Colony, Aurangabad.
2.	The State of Maharashtra. (Copy to be served on the Public Prosecutor of the High Court of Judicature of Bombay, Bench at Aurangabad). ... ``*	RESPONDENTS

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Mr. D. K. Thote, Advocate for the Petitioners.

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Mr. S. R. Vakil, Advocate for Respondent No.1.
Mr. P.P.More, A.P.P. for Respondent No.2.

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***

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CORAM:-ABHAY M. THIPSAY, J.
DATED:-26th FEBRUARY, 2014.

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ORAL JUDGMENT:

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1. Rule.

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2.By consent, Rule is made returnable

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forthwith.

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3.The Respondents waive service. By consent,
heard finally.

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4.The petitioners are the accused in S.C.C. No.
6263 of 2011 pending before the Judicial
Magistrate, First Class at Aurangabad. The case

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is in respect of an offence punishable under
section 138 of the Negotiable Instruments Act and
arises on a complaint filed by Respondent No.1
herein.

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5.The petitioners are aggrieved by the order
issuing process as passed by the Magistrate.

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They have, therefore, approached this Court

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invoking its constitutional jurisdiction and the
inherent powers, praying that the said complaint
case be quashed.

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6.Only one contention is advanced before me in
support of the petition i.e. that the order
issuing process is bad on account of the fact
that the process came to be issued without
holding any inquiry into the matter though the
petitioners were residents of a place beyond the
area in which the learned Magistrate exercises
jurisdiction.

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7.The factual correctness of this proposition
is not in dispute. The petitioner Nos.2 and 3
appear to be residents of Nagpur and the
complaint has been filed before the Magistrate at
Aurangabad.

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8.I have gone through the impugned order passed

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by the Magistrate. It does not appear that the
Magistrate, after examination of the complainant,
postponed the issue of process and held any
inquiry for the purpose of deciding whether or
not there were sufficient grounds for proceeding

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against the persons named as accused in the
complaint. It is conceded before me by the
learned counsel for the Respondent No.1 that no
such inquiry was held.

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9. The learned counsel for the Respondent No.1

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however submitted that in a case relating to an

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offence punishable under section 138 of
Negotiable Instruments Act, where the case is
basically based on documents, the holding of such
an inquiry cannot be held to be mandatory. He
submitted that, in any case, the same would not
vitiate the order issuing process if it is

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otherwise a case for proceeding against accused
persons on the basis of the averments made in the
complaint.

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10.The provisions of section 202 of the Code of
Criminal Procedure, which require a Magistrate to
hold an inquiry or direct investigation for
deciding whether or not there are grounds for
proceeding in the matter, have been held to be
mandatory. See the following judgments:

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1. Piyush Bharat Saini V/s Paras Gupta [CRIMINAL MISC. M. NO.: 5325 OF 2012

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decided on 11TH MARCH, 2013].

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2. CRIMINAL WRIT PETITION NO.: 463 OF 2013 Chandrakant and ors. V/s The State of

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Maharashtra and others. [CRIMINAL WRIT

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PETITION NO.: 463 OF 2013 Decided on 21st
NOVEMBER, 2013]

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11.In view of this legal position, the order

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issuing process cannot be said to be proper or
legal. The same, therefore, needs to be

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interfered with.

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12.However, since the complaint, on a reading

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thereof, discloses the ingredients of the alleged
offence, the complaint cannot be quashed.

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13.The petition is partly allowed. The order

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issuing process is set aside. The learned
Magistrate shall hold an inquiry into the matter
as contemplated under section 202 of the Criminal
Procedure Code and then decide whether or not

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there are grounds for proceeding against the
accused. Thereafter, the Magistrate shall

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proceed further with the case in accordance with
the decision as may be taken by him.

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14.Rule is made absolute in aforesaid terms.

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15.The Respondent No.1 shall remain present

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before the Magistrate on 12th March, 2014 or any
subsequent date as may be fixed by the

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Magistrate.

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[ABHAY M. THIPSAY, J.]

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Dated:26/02/2014.
ans/80

Uni Multi Trade India Pvt.Ltd and Others v. Dr.Sonal Prajwal Mithawala and Another

Case brief

What is this about?

What did the court decide?

Uni Multi Trade India Pvt.Ltd and Others v. Dr.Sonal Prajwal Mithawala and Another

Case brief

What is this about?

What did the court decide?

What the court decided

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