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2011 DIGILAW 1055 (BOM)

Kirit Mangaldas Shah v. Sitaram Dayalji Patel

2011-08-20

K.U.CHANDIWAL

body2011
JUDGMENT Heard learned counsel for the petitioner-accused and learned APP for the State. Learned counsel for the petitioner invited my attention to paragraph 4 of the complaint CC No. 2557/SS/2008 moved before the learned Metropolitan Magistrate, 34th Court, at Borivali which reads as under :- "4. On assurance of the accused, I have deposited the above said cheque in my Bank i.e. New India Co. Op. Bank Ltd. (NIC) Goregaon on 27.6.2008 but again the said cheque was dishonoured by the bank of the accused vide banker memo dated 28.6.2008 with reason "FUNDS INSUFFICIENT". I have received the intimation of the dishonour of the said cheque through my bank on 30.8.2008. Thereafter I came to know that accused has given the above said cheque, which was lying with him and put my name on the cheque and handed over to me, does not belong to him but has issued it for the discharging of his legal and enforceable liability i.e. for the payment of my above said outstanding bill. I have also lodged one police complaint against the accused on 17.7.2007 u/s. 406 and 420 I.P.C." 2. In the light of the assertions of the complainant (the respondent in the present proceedings), it is more than clear that the present petitioner is not the drawer of the cheque. It was expected of the complainant to prosecute the drawer of the cheque. The complaint also illustrates in paragraph 5 that he accused-petitioner vehemently denied any liability and also disputed issuance of the questioned cheque while putting up his reply, by the advocate's notice dated 1st August 2008. In the situation of the matter, issuance of process by the learned Metropolitan Magistrate was uncalled for and likewise the observations of the learned Additional Sessions Judge in his order dated 21st November 2009 is obliterating the record. The prosecution in terms of section 138 of the Negotiable Instruments Act vide CC No. 2557/SS/2008 pending before the learned Metropolitan Magistrate, 43rd Court, at Boriwali is quashed and set aside. Writ Petition disposed of accordingly. Petition allowed.