This common judgment disposed of three writ petitions challenging orders of issuance of process under Section 138 NI Act. The court held that the issue of legally enforceable debt could be tried at trial and permitted no interference under Article 227 against the revisional court's order.
Petitions dismissed with no costs.
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.
20-crwp115-2022++.doc
AGK
IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION
WRIT PETITION NO.115 OF 2022
WITH
WRIT PETITION NO.116 OF 2022
WITH
WRIT PETITION NO.120 OF 2022
Nilesh Yashwant Patil… Petitioner
V/s.
The State of Maharashtra & Anr.… Respondents
Ms. Manpreet Kaur i/by Falcon Legal for the petitioner.
Mr. A.R. Patil, APP for respondent no.1/State.
Mr. Moinuddin Khan for respondent no.2.
Digitally signed byATUL ATUL GANESH GANESH KULKARNI KULKARNI Date: 2022.10.12 11:10:09 +0530
CORAM :AMIT BORKAR, J.
DATED:OCTOBER 11, 2022
P.C.:
1.Since all these three (3) writ petitions arise out of similar
questions of fact and law, all three (3) writ petitions are being
disposed of by this common judgment.
2.Respondent no.2 in each petition filed complaint under
section 138 of the Negotiable Instruments Act, 1881 alleging that
the complainant had paid various amounts to the petitioner by
cash and by cheque, details of which are mentioned in the
complaint. It is alleged that the payment was made in pursuance of
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the transactions of purchase of flat which cannot be fructified and,
therefore, towards repayment of payment made by the
complainant the petitioner has issued cheque in favour of the
complainant which was dishonored. The complainant demanded
the amount by issuing statutory notice but in spite of receipt of
notice the amount was not repaid and, therefore, the complainant
filed complaint under section 138 of the Negotiable Instruments
Act, 1881.
3.Learned advocate for the petitioner submitted that there was
no transaction of sale of flats in favour of the complainant. The
amount as alleged in the complaint was never received by the
petitioner and, therefore, there is no legally enforceable liability. It
is submitted that there is no proof submitted before the learned
Magistrate before issuance of process.
4.Having perused the averments in the complaint, it appears
that the complainant has given specific details of the transactions
entered into between the complainant and respondent no.2. The
fact of issuance of cheque is not disputed, but according to the
petitioner the said cheque was issued as and by way of security. If
the issuance of cheque is not disputed, whether the cheque was
issued for enforcement of legally recoverable liability or not is a
question which has to be tried by the learned Magistrate at the
time of trial of complaint under section 138. At the stage of
issuance of process under section 202 of the Criminal Procedure
Code, the learned Magistrate is expected to hold an inquiry into
prima facie averments in the complaint and witnesses, if any
present on the date of issuance of instrument. In the facts of the
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case, except raising issue of legally enforceable debt, no other issue
has been raised.
5.In that view of the matter, the order of issuance of process
cannot be faulted. The learned revisional Court has given detailed
reasons as to why interference under section 397 is not called for
which does not warrant interference under Article 227 of the
Constitution of India.
6. The petitions are, therefore, dismissed. No costs.
(AMIT BORKAR, J.)
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2 issues framed by the court
Whether the order of issuance of process in a section 138 complaint can be faulted given the dispute on legally enforceable debt.
Whether the High Court can interfere under Article 227 against the reasons given by the revisional Court for not interfering under section 397.
2 provisions across 2 enactments
Nilesh Yashwant Patil
The State of Maharashtra
AMIT BORKAR
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court