Devendra Arvindbahi Parmar Vs State of Maharashtra and Anr.

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2-WP-1796-2022.doc

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VRJ

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IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION

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WRIT PETITION NO.1796 OF 2022

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Devendra Arvindbhai Parmar… Petitioner
V/s.
The State of Maharashtra & Anr.… Respondents

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Mr. Satyadev D. Joshi for the petitioner.
Mr. A.R. Patil, APP for the respondent No.1/State.
Mr. Gaurav V. Gokhale for respondent No.2

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CORAM :AMIT BORKAR, J.

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DATED:NOVEMBER 14, 2022

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P.C.:

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1.Rule. Rule is made returnable forthwith by consent of the
parties.

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2.The order of issuance of process in a proceedingunder
section 138 of the Negotiable Instruments Act, 1881 is the subject
matter of this writ petition. The grounds raised in the petition is
that the notice mandatorily required under section 138 of the
Negotiable Instruments Act, 1881 has not been issued to the
drawer.

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3.The facts relevant for the adjudication of the present petition
are as under. The complainant is a proprietary firm having name
M/s. Essar Electro Controlof which one Mr. Rahul M. Shah is the
proprietor. Theaccused is the proprietary firm of which, according

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to the complainant, one Mr. Devendra Aravindbhai Mistryis a
proprietor. According to the accused, it is Mr. Devendra
Aravindbhai Parmar whois the proprietor. The transaction
between the parties was sale and supply of control panel
accessories and hardware goods which were received by M/s.
Neutron Engineering Corporation Limited under invoices.
Towards the liability incurred out of the said transactions, five (5)
cheques bearing Nos.511052 dated 17th April 2020 in the amount
of Rs.25,705/-, 511051 dated 18th April 2020 in the amount of
Rs.19,539/-, 680436 dated 10th May, 2020 in the amount of
Rs.80,807/-, 312022 dated 25th May, 2020 in the amount of
Rs.1,53,980/- and 312023 dated 10th June, 2020 in the amount of
Rs.67,589/- were issued.

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4.The complainant deposited the cheques with the banker,
which were returned dishonoured with the remark ‘payment
stopped by the drawer’ and ‘funds insufficient’.

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5.The complainant, therefore, issued a demand notice dated
21st July, 2020 by registered post acknowledgment due. The copy
of the notice is produced on record at page 84. The relevant
portion of the notice reads thus:

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“To,

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Mr. Sameer Shah,
M/S. Neutron Engineering Corporation,
E-1, Shree Ram Amin Industrial Estate,
Ram Mandir Road, Goregaon (W),
Mumbai-400 104.”

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6. Since the amount as demanded under the said notice was not paid, a complaint was filed by the respondent.The learned

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Magistrate by the impugned order issued process against the
petitioner. The said order of issuance of process is the subject
matter of challenge in the present petition.

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7.The learned Advocate for the petitioner invited my attention
to the title of the notice which mentions name of Mr. Sameer Shah
as proprietor of M/s. Neutron Engineering Corporation. He also
invited my attention to the name of the accused which has been
amended to incorporate the name of Devendra Aravindbhai Mistry
in place of Sameer Shah. Therefore, the cause-title of the
complaint as today does show Devendra Aravindbhai Mistry as
accused. It is, therefore, submitted that the notice as mandatorily
required under section 138 of the Negotiable Instruments Act,
1881 has not been issued to the drawer.

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8.Per contra,the learned advocate for the complainant
submitted that the notice was sent on the correct address of
proprietary firm. It is also submitted that the validity of notice is a
triable issue which needs to be considered at the time of trial of
the complaint. He submitted that the invoices have been signed by
Mr. Sameer Shah.

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9.Reliance upon unreported judgment of Apex Court in
Criminal Appeal No.1325 of 2019 (Kishore Sharma Vs.
Sachin Dubey and the judgment of Himachal Pradesh) decided on
3rd September 2019 and Criminal Miscellaneous Petition
No. 176 of 2022 (Bhim Singh Vs. Natthu Singh) decided on 11th
March, 2022.

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10. It is well settled principle of law that following are the

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components of the offence under section 138 of the Negotiable
Instruments Act, 1881: 1) Drawing of the cheque; 2) Presentation
of the cheque to the bank; 3) Returning the cheque un-paid by the
drawing bank; 4) Giving notice in writing to the drawer of the
cheque demanding amount of the cheque; and 5) Failure of
drawer to make payment within 15 days of the receipt of notice.

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11. A copy of cheque is on record which shows that the cheque
has been signed by Mr. Devendra Aravindbhai Mistry as authorized
signatory of M/s. Neutron Engineering Corporation Limited.
Therefore, Mr. Devendra Aravindbhai Mistry is the drawer of the
cheque. The notice on record shows that it was issued to Mr.
Sameer Shah as the proprietor of M/s. Neutron Engineering
Corporation. Therefore, in my opinion, the essential ingredients of
the offence under section 138 of Negotiable Instruments Act, 1881
on the face of it has not been fulfilled.The submission that the
invoices were signed by Mr. Sameer Shah is not relevant fact to
adjudicate whether the notice was issued to a drawer of a cheque
or not. The material on record may show that the real transactions
might have occurred between Mr. Sameer Shah and the
complainant. For the purpose of constituting offence under section
138 of the Negotiable Instruments Act, 1881 demand from the
drawer of a cheque is necessary ingredient which fact has not been
complied with by the complainant.

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12. The judgments relied upon by the learned advocate for the
complainant has no bearing on the issues involved as in the facts
of those cases, the issue regarding service of notice on proper
address or the validity of notice on different count was involved

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which required evidence. In the facts of the case, the name of
drawer is mentioned in the notice as also in the complaint. The
name of signatory of a cheque has been mentioned on the basis of
documents which was the material before the learned Magistrate
at the time of issuance of process. It was clear that the notice was
not issued to the drawer and, therefore, the learned Magistrate
could not have issued process against the petitioner. Hence, the
following order:

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The impugned judgment and order passed by the learned
Metropolitan Magistrate, 56th Court, Mazgaonin C.C.
No.5602394/SS/2020 dated 19th July, 2021 issuing process against
the petitioner is quashed and set aside.

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13. Rule is made absolute in above terms. No costs.

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(AMIT BORKAR, J.)

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Devendra Arvindbahi Parmar v. State of Maharashtra and Anr.

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Devendra Arvindbahi Parmar v. State of Maharashtra and Anr.

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