Dismissed

Rekha Sharad Ushir v. Saptashrungi Mahila Nagari Sahkari Patsansta Ltd., Kalwan through Sahebrao Nimba Pawar and Anr.

Bombay HC18 Dec 2023WP/2316/2017

Case brief

AI extract

What is this about?

In a criminal writ petition, this bench considered a challenge to the issuance of process against the petitioner under Section 138 of the Negotiable Instruments Act for cheque dishonour, rejecting arguments that the loan had been repaid as facts determinable only at trial.

What did the court decide?

petition is dismissed; interim order stands vacated.

Rekha Sharad Ushir Vs Saptashrungi Mahila Nagari Sahkari… — Cheque Dishonour | Bombay HC (2023)

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2023:BHC-AS:38512

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sg

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IN THE HIGH COURT OF JUDICATURE AT BOMBAY

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CRIMINAL APPELLATE JURISDICTION

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 CRIMINAL WRIT PETITION NO.2316 OF 2017

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Rekha Sharad Ushir....Petitioner

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 vs.
Saptashrungi Mahila Nagari Sahkari Patsansta Ltd.,
Kalwan, Through Sahebrao Nimba Pawar And Anr. ...Respondents

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Mr. B.K. Raje, for the Petitioner.

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Mr. Bharat Gadhavi, a/w. Ms. Mansi Dande, i/b. Tejesh & Associates, for
Respondent No.1.

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Mr. Arfan Sait, APP, for State/Respondent.

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CORAM : SARANG V. KOTWAL, J.

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DATE : 18th DECEMBER 2023

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P.C. :

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1.Heard parties.

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2.The Petitioner is the original accused in S.C.C. No.648 of 2016
before the JMFC, Kalwan. The Petitioner has challenged the order dated

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2nd March 2017 issuing process against her under Section 138 of the
Negotiable Instruments Act.

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3.The complaint is filed by the Respondent No.1. It is their case

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that the complainant is a Credit Co-operative Society. The Petitioner had

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taken a loan of Rs.11,97,000/- on 25th July 2008 from the said credit
society. The Petitioner had executed all the necessary documents, including
the promissory note. In repayment of the principal amount as well as the
interest, the Petitioner issued a Cheque No.010722, drawn on Shri Ganesh
Sahakari Bank Ltd. Nashik, Raviwar Karanja Branch branch for
Rs.27,27,460/- dated 3rd October 2016. That cheque on presentation was
dishonoured on 14th October 2016. After complying with the statutory
requirements of sending the notice, as the payment was not made, a
complaint was filed. Learned Magistrate observed that he perused the
documents annexed to the complaint, prima facie case was established.
Ingredients of Section 138 of the Negotiable Instruments Act were made
out and, hence, he issued process under Section 138 of the Negotiable
Instruments Act on 2nd March 2017. The said order is under challenge in
the present petition.

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4.Learned Counsel for the Petitioner submitted that the
Petitioner has repaid the entire loan and yet the Respondent No.1 has
chosen to prosecute her. Learned Counsel invited my attention to the
earlier complaint filed by the same Respondent No.2 against the Petitioner,
which was filed vide SC No.1358 of 2015 before the Judicial Magistrate
First Class, Kalwan. Original number was Criminal Case No.135 of 2007.

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That case was for dishonour of the cheque dated 10th February 2007 for
Rs.3,75,976/-. The said prosecution was withdrawn by the complainant
because the Petitioner had repaid the amount of the cheque during
pendency of the said prosecution. Learned Counsel, therefore, submitted
that even on this occasion the loan is already repaid and, therefore, the
process should not have been issued against him. Learned Counsel for the
Respondent No.1 submitted that the subject matter of the earlier
prosecution was the Cheque No.010721 and the subject matter of the
present prosecution is the Cheque No.010722. This shows that there is
connection between the two loan transactions.

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5.Learned Counsel for the Respondent No.1 submitted that the
earlier complaint was a totally separate subject matter. He further
submitted that the learned Magistrate has perused the documents annexed
to the complaint. Though the learned Counsel for the Petitioner submitted
that there were no documents annexed to the complaint, the record shows
that the complaint was accompanied by various documents viz. The
resolution, cheque, memo, notice and acknowledgment. Those documents
are described in the list of documents accompanying the complaint. This is
also part of the record in the present petition and that list is at page 51.

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sg

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6.I have considered these submissions. At the stage of issuance
of process, the learned Magistrate had to refer to the averments in the
complaint. The complaint by itself adequately describes commission of
offence, as the cheque was dishonured. The case of the complainant is that
in repayment of the principal amount as well as the interest, the said
cheque was given, which was dishonoured. There is a presumption under
Section 139 of the Negotiable Instruments Act running against the
Petitioner. The repayment of the loan, as canvassed by the learned Counsel
for the Petitioner, can only be proved during trial after the evidence is led.
At this stage, there is nothing on record to reach a conclusive finding that
the loan was repaid and there was no legally enforceable liability pending
against the Petitioner for which the cheque was given. The earlier
transaction and the prosecution was for a separate loan transaction, as is
described in that complaint itself. Therefore, it is not possible to connect
both these prosecutions, though the cheque numbers in those prosecutions
are serially one after the other.

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7.Considering this discussion, it is not possible to hold that the
order passed by the learned Magistrate issuing process was without basis or
illegal.

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8.With the result, I do not find any substance in the petition. The

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petition is dismissed. The interim order passed earlier stands vacated.

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 (SARANG V. KOTWAL, J.)

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Rekha Sharad Ushir v. Saptashrungi Mahila Nagari Sahkari Patsansta Ltd., Kalwan through Sahebrao Nimba Pawar and Anr.

Case brief

What is this about?

What did the court decide?

Rekha Sharad Ushir v. Saptashrungi Mahila Nagari Sahkari Patsansta Ltd., Kalwan through Sahebrao Nimba Pawar and Anr.

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

Issues for consideration

Statutes considered

Parties & counsel

Coram

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