Dismissed

Gidugu Venkataswara Rao and Anr. v. State of Maharashtra and Anr.

Bombay HC9 Mar 2023WP/1097/2022

Case brief

AI extract

What is this about?

The Bombay High Court dismissed a writ petition challenging the issuance of process under Section 138 of the Negotiable Instrument Act. The Court held that factual issues regarding notice service, responsibility, and the nature of cheque issuance are to be decided during trial, not at the interlocutory stage.

What did the court decide?

The Writ Petition is dismissed for lack of merit as the raised contentions are questions of fact to be decided at trial.

Gidugu Venkataswara Rao and Anr. Vs State of Maharashtra and… — Cheque Dishonour | Bombay HC (2023)

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Digitally signed by VINA VINAARVIND ARVIND KHADPE KHADPE Date:2023.03.14 14:47:52 +0530

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Vina Khadpe

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54-wp-1097-2022.doc

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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CRIMINAL APPELLATE JURISDICTION

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CRIMINAL WRIT PETITION NO.1097 OF 2022

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Gidugu Venkataswara Rao and anr… Petitioners

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 vs.
State of Maharashtra and anr… Respondents

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Ms. Shaheen S. Kapadia for the Petitioners.
Mr. Arfan Sait, APP for the Respondent-State.
Mr. Vikrant Shetty for Respondents No.2.

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CORAM:AMIT BORKAR, J.

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DATED:MARCH 09, 2023

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P.C.:

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1.The Petitioners are accused nos.3 and 4. The complaint
under Section 138 of Negotiable Instrument Act, 1881 has been
filed against the Petitioners and ors. In paragraph 4 of
complaint, the Petitioners have been described as the partners
of accused no.1 – Partnership Firm (Rallis India Ltd). It is
stated in paragraph 4 of complaint that the Petitioners are in-
charge and responsible for day to day affairs and conduct of
business of accused no.1. The Magistrate by order dated 1st
December, 2021 issued process against the Petitioners. The
Petitioners therefore have filed the present Petition challenging
complaint bearing SCC/784/2021 pending before the 5th
Judicial Magistrate, F.C. Vashi, Belapur, Navi Mumbai.

Vina Khadpe

2 / 3

54-wp-1097-2022.doc

2.Learned advocate for the Petitioners has inter alia raised
two contentions; (i) that the demand notice has not been served
on the Petitioners, (ii) that the Petitioners are not in-charge of
and responsible for day to day affairs of accused No.1 –
Partnership Firm.

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3.Insofar as the service of notice on accused is concerned,
the said issue as being question of fact needs to be decided at
the time of trial of complaint.

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4. As far as issuance of process is concerned, the Court
would be bound by the statement made in complaint.

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5.Paragraph 16 of complaint states that the accused has
replied to the Statutory Notice. Therefore, the submission
about non service of complaint cannot be accepted at this stage.
However, it will be open for the Petitioners to raise such a
contention at the time of trial.

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6.The next contention of the Petitioners is that they are not
in-charge and responsible for day to day affairs of the
Partnership Firm. In paragraph 4, it has been specifically
averred that the accused Nos.3 and 4 are partners of accused
no.1 and in-charge of day to day affairs and conduct of business
of accused no.1 and having common address as mentioned in
the cause title of the said complaint. In my opinion, such
averment in the complaint is sufficient, at least for issuance of
process.

3 / 3

Vina Khadpe

54-wp-1097-2022.doc

7.The last contention is to the effect that the cheques were
issued as security. Whether the cheques were issued for
consideration or as security is the matter of fact which needs to
be adjudicated upon at the time of trial. The Apex Court in the
case of Sunil Todi v. State of Gujarat1 has held that mere
issuance of cheque as a security is no ground for acquitting the
accused when the legally enforceable liability is aggrieved in the
complaint. Whether the cheque has been issued for legally
enforceable liability, is a matter of fact which has to be decided
at the time of trial.

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8.Since, the issues raised by the Petitioners being questions
of facts, the order of issuance of process or the filing of
complaint cannot be assailed on that ground.

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9. There is no merit, Writ Petition is dismissed.

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(AMIT BORKAR, J.)

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1 Criminal Appeal No. 1446 of 2021

Gidugu Venkataswara Rao and Anr. v. State of Maharashtra and Anr.

Case brief

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Gidugu Venkataswara Rao and Anr. v. State of Maharashtra and Anr.

Case brief

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