Dismissed¶20

Kayyum Kisanseva Kendra Karanjkheda Thrugh Azamat Baig Kayyum Baig Mirza and Another v. the State of Maharashtra and Others

Negotiable Instruments Act, Section 138 – Issuance of process

Bombay HC6 Mar 2024WP/427/2024

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Case brief

AI extract

What is this about?

Section 138 NI Act; issuance of process; stolen cheque defence; defence not entertainable at initial/pre-trial stage; legally enforceable debt a matter of trial evidence; criminal revision dismissed upheld; extraordinary writ jurisdiction refused; Bombay High Court Aurangabad Bench; C.W.P. No. 427 of 2024; disposed by dismissal.

What did the court decide?

On perusal of the order of issuance of process and the Revisional Court's order, there is sufficient material on record of the Trial Court for issuance of process against the petitioners. ¶16

Kayyum Kisanseva Kendra Karanjkheda Thrugh Azamat Baig… — Cheque Dishonour | Bombay HC (2024)

What the court decided

AI extract

Outcome

Dismissed

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Issue for consideration

Whether the Trial Court's issuance of process against the petitioners under Section 138 of the Negotiable Instruments Act was justified. +1 more

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Court's answer

On perusal of the order of issuance of process and the Revisional Court's order, there is sufficient material on record of the Trial Court for issuance of process against the petitioners.

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Ratio / Principle

The Revisional Court was perfectly justified in holding that the petitioners' defence (that the cheque was stolen or misused) cannot be considered at the initial stage; whether the cheque was issued for a legally enforceable debt or was misused is a matter of evidence, and a well-reasoned revisional order dismissing the revision stands.

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Key takeaways

No case is made out by the petitioner to exercise the extraordinary writ jurisdiction of the High Court.ratio¶19

Detailed headnote1 paragraphs

Negotiable Instruments Act, Section 138 - Issuance of process - Criminal Writ Petition dismissed. Process was issued by the Trial Court against the petitioners on a complaint by respondent Nos. 2 and 3 under Section 138 NI Act; the petitioners' revision (Criminal Revision Application No. 19 of 2023, Sessions Court) was dismissed. Petitioners claimed the cheque was stolen (police complaint dated 1st October, 2022; enquiry letter dated 20th December, 2022 recording statements of both sides), and that their financial dealings with the complainants, arising from a joint attempt to obtain a petrol pump, were civil in nature. Nitin B. Suryawanshi, J. held that there was sufficient material on the Trial Court's record for issuance of process; whether the cheque was issued for a legally enforceable debt or was misused is a matter of evidence, and the defence that the cheque was stolen or misused cannot be considered at the initial stage - a view the Revisional Court was 'perfectly justified' in taking. Finding no case for exercise of extraordinary writ jurisdiction, the Court dismissed the petition as devoid of merit.

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2024:BHC-AUG:4794

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{1}

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cwp427-24.doc

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drp IN THE HIGH COURT OF JUDICATURE OF BOMBAY BENCH AT AURANGABAD

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CRIMINAL WRIT PETITION NO.427 OF 2024

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Kayyum Kisanseva Kendra Karanjkheda through PETITIONER Azamat Baig Kayyum Baig Mirza and Another

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VERSUS

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The State of Maharashtra and Others RESPONDENTS

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Mr. Harshal P. Randhir, dvocate for the Petitioners Mr. S. V. Hange, APP for respondent - State

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[CORAM : NITIN B. SURYAWANSHI, J.] DATE : 6th MARCH, 2024

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ORDER :

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Petitioners are aggrieved by order of issuance of process by Trial Court under section 138 of the Negotiable Instruments Act. Petitioners unsuccessfully challenged the said order by filing Criminal Revision Application No. 19 of 2023 in Sessions Court.

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Petitioners claim that the cheque in question, on the basis of which, respondent Nos.2 and 3 have filed complaint under section 138 of the NI Act, was in fact stolen and complaint to that effect was made by petitioners to the Police Commissioner, Aurangabad and Police Inspector Begumpura Police Station on 1^st October, 2022. Letter dated 20^th December, 2022 is placed on

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{2} cwp427-24.doc

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record at page 82, wherein it is mentioned that the complaint of petitioners was enquired into and statements of petitioners and respondent Nos.2 and 3 were recorded. It appears that, petitioners and respondent Nos.2 and 3 are well acquainted with each other and they had jointly tried to obtain a petrol pump and for that purpose there were financial transactions between them. The said matter is of civil nature and, therefore, parties were asked to approach Civil Court. Learned advocate for petitioners, therefore, submits that considering these aspects, Trial Court has erred in issuing process and without appreciating this aspect Revisional Court has dismissed the revision.

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Having heard learned advocate for petitioners and learned APP for the State and on perusal of the order of issuance of process and the Revisional Court’s order, it is clear that there is sufficient material on record of the Trial Court for issuance of process against petitioners. Revisional Court has observed that whether the cheque is issued for legally enforceable debt or it is misused by the complainant, is a matter of evidence and without giving opportunity to both the sides, merely because petitioners have taken a defence that said cheque has been misused, the same cannot be considered at the initial stage.

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Revisional Court is perfectly justified in holding that

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{3} cwp427-24.doc

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defence of the petitioners cannot be considered at the initial stage. Revisional Court has passed a well reasoned order. No case is made out by petitioner to exercise extraordinary writ jurisdiction.

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The petition being devoid of merit is dismissed.

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[NITIN B. SURYAWANSHI] JUDGE

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drp/cwp427-24.doc

Kayyum Kisanseva Kendra Karanjkheda Thrugh Azamat Baig Kayyum Baig Mirza and Another v. the State of Maharashtra and Others

Case brief

What is this about?

What did the court decide?

Kayyum Kisanseva Kendra Karanjkheda Thrugh Azamat Baig Kayyum Baig Mirza and Another v. the State of Maharashtra and Others

Case brief

What is this about?

What did the court decide?

What the court decided

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