Allowed

Housing Development Finance Corporation Ltd., v. Hemant Mohan Agarwal and Anr.

Bombay HC12 Oct 2023APL/169/2020

Case brief

AI extract

What is this about?

High Court allowed a criminal application to quash an impugned order of a Magistrate in a cheque dishonour case. The Court held the order was cryptic and lacked application of mind, directing the Magistrate to pass a fresh order considering prior observations.

What did the court decide?

Impugned order dated 24.10.2019 is quashed and set aside; direction to Magistrate to pass a fresh order.

Housing Development Finance Corporation Ltd., Vs Hemant… — Cheque Dishonour | Bombay HC (2023)

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Chitra Sonawane. Cri.Apl.169-2020.docx

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IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION

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Criminal Application No.169 of 2020

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Housing Development Finance Corporation Ltd.

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…. Corporation Ltd. Applicant. Digitally signed by CHITRA Vs. CHITRA SANJAYSONAWANE SANJAY Date: …. SONAWANE 2023.10.14 Hemant Mohan Agarwal & Anr. Respondents. 13:20:21 +0530

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Mr Ramakant Yadav, Advocate i/b RHY Juris Law Associates for applicant.

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Mr AR Kapadnis, APP for State.

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Mr Shubham Mhatre for Respondent No.1.

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P.C.:

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Heard Mr Ramakant Yadav, the learned Counsel for the
applicant; Mr Shubham Mhatre, the learned Counsel
appearing on behalf of the first respondent; and Mr AR
Kapadnis, learned APP for the respondent/State.

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2.The Applicant before this Court was the original
complainant in CC No.11312/SS/2017, which was pending
before the learned Magistrate, 33rd Court, Ballard Pier,
Mumbai, under Section 138 of the Negotiable Instruments
Act, 1981.

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____________________________________________ 12 October 2023

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Chitra Sonawane. Cri.Apl.169-2020.docx

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3.Being aggrieved with the order of issuance of process
dated 15.2.2018 and also the order of issuance of bailable
warrant dated 6.4.2018, the respondent No.1 had approached
this Court by way of Criminal Application bearing No.538 of
2018. This Court by an order dated 4.10.2019, allowed the
application by setting aside and quashing the process issued
against respondent No.1 but has given liberty to the applicant
to move before the trial Court for appropriate relief with
application under Section 14 of the Limitation Act.

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4.Mr Ramakant Yadav learned Counsel appearing on
behalf of the applicant submitted that the complaint bearing
CC No.11312/SS/2017 was listed before the learned
Magistrate on 14.10.2019 but the Court was on leave. Hence
the matter was adjourned 4.11.2019. However, the learned
Magistrate on 24.10.2019, before the fixed date, passed the
impugned order and disposed of the complaint. He submitted
that the learned Magistrate has passed the impugned order
mechanically without considering the observations made in
the order (paragraph 14 and 15) dated 4.10.2019 in Criminal
Application No.538 of 2018.He made a grievance that the
impugned order is a non speaking and without application of
mind.

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Page No.2 of 3 ____________________________________________ 12 October 2023

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Chitra Sonawane. Cri.Apl.169-2020.docx

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Mr Shubham Mhatre, learned Counsel appearing for the first respondent submitted that bare perusal of the complaint which is filed before the learned Magistrate reveals that the company has not been made an accused nor the Court has issued process against the company. According to him, the complaint has not satisfied the basic ingredients of Section 138 of NI Act while taking cognizance of the complaint.

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Upon perusal of the records, the impugned order dated 24.10.2019 passed by learned Metropolitan Magistrate is a cryptic. The learned Magistrate needs to demonstrate such application of mind by giving detailed reasons pointing to the observations made in the order of this Court dated 4.10.2019 passed in Criminal Application 538 of 2018.

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In view of this, the impugned order dated 24.10.2019 passed by the learned Magistrate is quashed and set aside, and the learned Magistrate is directed to pass an order afresh taking into consideration the observations made in the order of this Court in Criminal Application No.538 of 2018. The petition as such stands disposed of. It is made clear that this Court has not examined the merits of the case.

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Page No.3 of 3

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12 October 2023

Housing Development Finance Corporation Ltd., v. Hemant Mohan Agarwal and Anr.

Case brief

What is this about?

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Housing Development Finance Corporation Ltd., v. Hemant Mohan Agarwal and Anr.

Case brief

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What the court decided

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