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2015 DIGILAW 1546 (BOM)

Purushottam v. State of Maharashtra

2015-07-10

A.B.CHAUDHARI

body2015
JUDGMENT : A.B. Chaudhari, J. Rule. Rule is made returnable forthwith. Learned APP Ms. Kalyani Deshpande waives service for respondent No. 1, and learned Adv. Mr. Mohit Waswani, for respondent No. 2. Heard learned counsel for the rival parties. By consent of rival parties, this Criminal Revision Application is taken up for final hearing and disposed of by this Judgment and Order. 2. Following is the only question that arises for consideration in this Revision Application:- Whether the order of issuance of process in a complaint case registered under Section 138 of the Negotiable Instruments Act could be set aside only on the ground that the notice against the noticee under Section 138 of the Negotiable Instruments Act was not addressed to nor any demand was made from the Company, but was made from the Director of the Company? 3. Perused the record. Seen the Judgment and Order impugned. 4. Learned counsel for the respondents invited my attention to the notice in relation to which the order regarding issuance of process stood quashed by the Revisional Court. I have perused the notice that was given before filing of 138 proceedings. The notice is addressed to Shri Ratilal Raka, Director and thereafter three addresses are given. On the top of notice, para 1 of the notice states that after the Revision Applicant was appointed as a Super Stockist, an amount of Rs.40,00,000-00 [forty lakhs only] by way of deposit was accepted by the notice. However, since the Revision Applicant did not want to continue with the business with noticee, the refund of the deposit was claimed. 5. Pursuant to the demand for refund of deposit, the notice returned Rs. 15,00,000-00 [rupees fifteen lakhs only] in the financial year 2011-12 and Rs. 10,00,000-00 [rupees ten lakhs only] in the financial year 2012-13; but the balance amount was not paid which was agreed to be paid and instead Cheque No. 00192 for Rs.15,00,000-00 on 10th February, 2013 was issued in favour of revision applicant, but was bounced and, therefore, proceedings were initiated. 6. Mr. Sirpurkar, learned Counsel for the Revision Applicant relied on the Judgment in the case of J.V. Baharuni & another v. State of Gujarat & another [ (2014) 10 SCC 494 ] to substantiate his contention. 7. Learned Adv. Mr. Mohit Waswani holding for Adv. Mr. 6. Mr. Sirpurkar, learned Counsel for the Revision Applicant relied on the Judgment in the case of J.V. Baharuni & another v. State of Gujarat & another [ (2014) 10 SCC 494 ] to substantiate his contention. 7. Learned Adv. Mr. Mohit Waswani holding for Adv. Mr. Nitin Lalwani for respondents vehemently opposed this Revision Application and submitted that the liability under Section 138 of the Negotiable Instruments Act being of penal and criminal nature, strict compliance, even if technical, is mandatory at the threshold, i.e., for filing a complaint and that is why the respondents dubbed the notice in question as the notice not contemplated by Section 138 of the Negotiable Instruments Act, entailing into dismissal of the complaint. According to him, the Trial Judge was under a duty to order issuance of process to examine whether compliance of notice under Section 138 of the Negotiable Instruments Act was strictly made in accordance with law or not and, therefore, the Revisional Court has found it to be so and rightly quashed the order issuing process. He took me through the notice. 8. Upon hearing learned counsel for the rival parties and upon perusal of the notice in entirety, I find that the same is addressed to Ratilal Raka, Director of MAC Remedies Pvt. Ltd, and thereafter three addresses of the Company have been given. In my opinion, as the law is trite that the proceedings under Section 138 of the Negotiable Instruments Act are not strictly criminal proceedings as understood under the criminal jurisprudence, the bouncing of cheque has been made an offence under Section 138 of the Negotiable Instruments Act. It is, therefore, necessary to have summary resolution of the dispute in relation to the monetary disputes between the parties. The proceedings are, therefore, of quasi criminal nature and are not strictly of criminal nature. That apart, the process having been issued, the complainant is always entitled to amplify in his evidence or the witnesses or by way of documents, or as the case may be, to prove its case to the hilt. The proceedings are, therefore, of quasi criminal nature and are not strictly of criminal nature. That apart, the process having been issued, the complainant is always entitled to amplify in his evidence or the witnesses or by way of documents, or as the case may be, to prove its case to the hilt. Whether or not the notice under Section 138 was, in fact, given to the Company, whether or not demand for payment of amount under the cheque was made from the Company, particularly when the Director of the Company was given the notice as the Director of MAC Remedies Pvt. Ltd., and the real intentment, are the matters which are required to be looked and appreciated during the course of trial. It would be wholly wrong to gag the complainant from having an opportunity to prove his case in accordance with law. In the instant case, the fact of the matter is that there is a balance amount of Rs. 15,00,000-00 out of the deposit of the Revision Applicant which remained unpaid. The fate of the trial ultimately, as contended by learned counsel for the respondents about fatal defect in the complaint, can certainly be decided in trial, but then to throw away the complaint on the ground that the notice of demand to the Company does not seem to have been made in the background of the fact that the notice is addressed to the Company, through to the Director, is wholly wrong and unjustifiable. I, therefore, think that the Revisional Court committed an error in quashing the process. That being so, I make the following order:- ORDER (a) Criminal Revision Application No. 65 of 2014 is allowed. (b) Rule is made absolute in terms of Prayer Clause [1]. (c) The order made by learned Judicial Magistrate First Class (Spl. Court of Section 138 of N.I. Act), Nagpur, dated 19th September, 2013 in SCC No. 10925/2013 issuing process shall stand restored. (d) No order as to costs.