Full Judgment Text
2010:BHC-AS:12617
1
vks
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPLICATION NO.4514 OF 2009
Mr. Nitesh Jayantilal Jain,
age:33 years,
residing at room No.7,
rd
3 floor, Merchant Chamber,
C.S.Rane Road, Worli,
Bombay 400 018 Applicant
versus
1. The State of Maharashtra,
2. Mr. Hasmukh Kanji Gala
age: 54 years, residing at ,
rd
158/160, 3 floor, Krishna Niwas
Bhavani Shankar Road, Dadar
Mumbai 400 028. .. Respondents.
Mr. Sandeep C. Kekane, i/b M.K. Kocharekar for the applicants in all
the matters.
Ms. A.A. Mane, APP for the respondent No.1 State..
CORAM: J. H. BHATIA, J.
DATED: 5th July, 2010.
Judgment
1. Heard learned counsel for the parties.
2. The applicant before this Court is the original accused
while respondent No.2 is the original complainant. The complainant
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filed complaint u/s 138 of the Negotiable Instrument Act in
th
Metropolitan Magistrate, 7 Court at Dadar and it came to be
registered as Criminal case No.5342/SS/2005. According to
complainant on the request of accused, he advanced loan of Rs.
1,00,000/- to the accused, which he assured to repay within the
stipulated period. He issued post dated cheque dated 21.4.2005 in
favour of the complainant. The cheque was drawn on Dena Bank,
Worli Branch, Mumbai. The cheque was presented for encashment,
but it was returned with return memo dated 27.5.2005 of Dena
Bank and return memo dated 28.5.2005 from United Bank of India
through which the complainant had presented cheque to Dena
Bank. The endorsement from Dena Bank showed that the cheque
was returned unpaid for “funds insufficient”. After that notice
dated 25.6.2005, was issued calling upon the accused to make
payment. The notice was received by him and he also replied to
the said notice through his advocate on 8.7.2005. He failed to
make payment within the stipulated period. Therefore, complaint
u/s 138 of the Negotiable Instrument Act.
3. On the basis of that complaint, learned Metropolitan
Magistrate, directed to issue process against the accused u/s 138
Negotiable Instrument Act. That order was challenged by the
accused in Revision Application No.299 of 2007 on the ground that
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process was issued without following the procedure prescribed
under section 200 which requires recording the statement of the
complainant to verify the contents of the complaint. The learned
Additional Sessions Judge, by order dated 25.1.2008, allowed that
revision application setting aside the order passed by the
Magistrate. The learned Additional Session Judge directed the
Magistrate to proceed with the complaint from the stage of
recording verification statement of the complainant and to proceed
for issuing process as per law. The accused was not satisfied with
that order and he filed Criminal Writ Petition No.318 of 2008. That
writ petition was dismissed upholding the order of Sessions Court.
In view of the order, passed by the Sessions Court, the learned
Magistrate recorded verification statement of the complainant and
also he recorded the statement on oath of witness from Dena Bank.
In view of oral as well as documentary evidence placed by
complainant, learned Magistrate passed fresh order dated
24.4.2009 fOR issuing process u/s 138 of Negotiable Instrument Act
against the accused. That order is challenged in the present
application u/s 482 of the Criminal Procedure Code.
4. The learned counsel for the applicant accused contended
that the verification statement is not mere formality and unless the
complainant makes statement on oath in respect of the relevant
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4
facts to make out a case for issuance of process, process cannot be
issued. In support of this contention he placed reliance upon
Sabitha Rammurthy & anr -vs- R B S Channabasavaradhya
AIR 2006 SC 3086, wherein the Hon’ble Supreme Court has
observed in para 7 thus:-
“In a case where the Court is required to issue summons
which would put the accused to some sort of harassment,
the Court should insist strict compliances of the statutory
requirements. In terms of Section 200 of the Code of
Criminal Procedure, the complainant is bound to make
statements on oath as to how the offence has been
committed and how the accused persons are responsible
therefor.”
5. In Captain Lance Irwin Lobo -vs- Ismail D’souza @
Angelo Ismail De Souza & anr (2007 ALL MR (CRI) 623), the
learned Single Judge of this Court, Panji Bench considered the
provisions of section 200, 202 and 204 and observed in para 16 as
follows :-
“16. A conjoint reading of sections 203/204, Cr. P.C shows
that process is to be issued after considering the statement
on oath of the complainant and of the witnesses and the
result of the inquiry or investigation, if any, under Section
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5
202. The reading of the statement on oath of the
complainant u/s 200 Cr. P. C, is not an empty formality.
Commonly it is nicknamed as verification. To verify means to
establish the truth. In other words, verification is done in
order to ascertain as to what is pleaded by the complainant
is true or not. It is with a view to separate chaff from the
grain as many a times complaints do contain unfounded
allegations and it is the duty of the Court to ensure that what
is stated in the complaint is also stated by the complainant
on oath and it is only then that based on such statement the
process can be issued. The corollary of this would be that
unless offences are disclosed from the statement on oath, no
process can be issued only based on averments in the
complaint. The complainant is bound to make a statement
on oath as to how the offence was committed and how the
accused persons are responsible therefor. After the
statement on oath is recorded, a Magistrate is required to
apply his judicial mind to the facts of the case and the law
applicable thereto and find out what offence/s is made out,
notwithstanding that the other party at that stage is
unrepresented. As observed by the Apex Court time and
again, summoning of an accused in a criminal case is a
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6
serious matter and criminal law cannot be set into motion as
a matter of course. A Magistrate is required to examine the
nature of the allegations made in the complaint and the
evidence both oral and documentary to see if it is sufficient
for the complainant to succeed in bringing charge home to
the accused. In other words, the examination of the
complainant on oath is for the purpose of ascertaining
whether a prima facie case is made out against the accused
to issue process so that the issue of process is prevented on
a complaint which is either false or vexatious or intended
only to harass. As observed by the Apex Court in Punjab
national bank and others -vs- Surendra Prasad Sinha (1993
Supp (1) SCC, 499), it is salutary to note that judicial process
should not be an instrument of oppression or needless
harassment. A Magistrate is required to find out whether the
concerned accused should be legally responsible for the
offence charged for. Only on satisfying that the law casts
liability or creates offence against the juristic person or the
persons impleaded then only process would be issued and
at that stage the Court has got to be circumspect in
exercising discretion and should take all the relevant facts
and circumstances into consideration before issuing process
appln4514of09.sxw
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7
lest it would be an instrument, in the hands of the private
complaint as vendetta to harass the person needlessly.
Vindication of Majesty of justice and maintenance of law and
order in the society are the prima objects of criminal justice
but it would not be the means to wreak personal
vengeance”.
6. In that case certain contract had taken place about the
property in the year l995, wherein a Power of Attorney was
executed and that Power of Attorney was revoked in March,2001 by
issuing public notice. The revocation of the said Power of Attorney
was contested by the accused in that case. The civil suit was also
filed in 2001 for specific performance of the contract and for
damages by the complainant. Sale deed was executed by the
accused as Attorney of the complainant in May,2003. On
25.11.2004, the complainant filed complaint u/s 409, 418 423, 465,
468, 471 and 120-B Indian Penal Code against accused persons.
Process was issued by the learned Magistrate for the offences
except under section 468. The accused challenged that order in the
court of Sessions. The Additional Sessions Judge deleted most of
the sections and maintained the order to issue process only for the
offence of breach of trust u/s 409 IPC. That order was challenged
by the accused before High Court, mainly on the ground that there
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8
was no proper verification of the facts stated in the complaint to
make out a case under section 409 or any other section. Taking
into consideration all these complicated allegations and facts, this
Court held that the complainant had not stated all these facts in his
verification statement to make out a criminal case even for
issuance of process under section 409 and therefore, the
complaint was dismissed.
7. In the present case, in the complaint all the details of the
transactions are given. In the verification statement dated
18.9.2008, the complainant had clearly stated that he had made
payment to the accused and accused had given cheque to him. The
cheque was presented to the bank, but it was unpaid. Cheque was
presented but it was returned unpaid. He asked accused two to
four times for making the payment of money but he failed. Then he
issued demand notice. That notice was received by him and he also
replied. This verification statement is to be read alongwith
documents, which are produced with the complaint. The
documents include, cheque issued by the accused, memos issued
by both the banks, particularly drawee bank, to the effect that the
cheque was being returned unpaid for want of sufficient funds.
8. Taking into consideration the documents filed in support
of the complaint, in my considered opinion, verification statement
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9
is complete to make out a case u/s 138 of the Negotiable
Instrument Act. Merely because the complainant stated in the
verification statement that he did not remember the date on which
notice was issued to the accused and the date on which reply was
given by accused, it cannot be said that the complainant has failed
to make out a case u/s 138 of Negotiable Instrument Act.
9. Taking into consideration all the facts and circumstances,
I find no illegality or irregularity in the impugned order passed by
the Magistrate for issuing process. The authorities in case M.S.
Narayana Menon (supra) does not come to the rescue of the
accused. I find no substance in the contentions raised on behalf of
the accused.
10. For the aforesaid reasons, the applications stand
dismissed.
(J. H. BHATIA, J.)
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1
vks
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPLICATION NO.4514 OF 2009
Mr. Nitesh Jayantilal Jain,
age:33 years,
residing at room No.7,
rd
3 floor, Merchant Chamber,
C.S.Rane Road, Worli,
Bombay 400 018 Applicant
versus
1. The State of Maharashtra,
2. Mr. Hasmukh Kanji Gala
age: 54 years, residing at ,
rd
158/160, 3 floor, Krishna Niwas
Bhavani Shankar Road, Dadar
Mumbai 400 028. .. Respondents.
Mr. Sandeep C. Kekane, i/b M.K. Kocharekar for the applicants in all
the matters.
Ms. A.A. Mane, APP for the respondent No.1 State..
CORAM: J. H. BHATIA, J.
DATED: 5th July, 2010.
Judgment
1. Heard learned counsel for the parties.
2. The applicant before this Court is the original accused
while respondent No.2 is the original complainant. The complainant
appln4514of09.sxw
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2
filed complaint u/s 138 of the Negotiable Instrument Act in
th
Metropolitan Magistrate, 7 Court at Dadar and it came to be
registered as Criminal case No.5342/SS/2005. According to
complainant on the request of accused, he advanced loan of Rs.
1,00,000/- to the accused, which he assured to repay within the
stipulated period. He issued post dated cheque dated 21.4.2005 in
favour of the complainant. The cheque was drawn on Dena Bank,
Worli Branch, Mumbai. The cheque was presented for encashment,
but it was returned with return memo dated 27.5.2005 of Dena
Bank and return memo dated 28.5.2005 from United Bank of India
through which the complainant had presented cheque to Dena
Bank. The endorsement from Dena Bank showed that the cheque
was returned unpaid for “funds insufficient”. After that notice
dated 25.6.2005, was issued calling upon the accused to make
payment. The notice was received by him and he also replied to
the said notice through his advocate on 8.7.2005. He failed to
make payment within the stipulated period. Therefore, complaint
u/s 138 of the Negotiable Instrument Act.
3. On the basis of that complaint, learned Metropolitan
Magistrate, directed to issue process against the accused u/s 138
Negotiable Instrument Act. That order was challenged by the
accused in Revision Application No.299 of 2007 on the ground that
appln4514of09.sxw
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3
process was issued without following the procedure prescribed
under section 200 which requires recording the statement of the
complainant to verify the contents of the complaint. The learned
Additional Sessions Judge, by order dated 25.1.2008, allowed that
revision application setting aside the order passed by the
Magistrate. The learned Additional Session Judge directed the
Magistrate to proceed with the complaint from the stage of
recording verification statement of the complainant and to proceed
for issuing process as per law. The accused was not satisfied with
that order and he filed Criminal Writ Petition No.318 of 2008. That
writ petition was dismissed upholding the order of Sessions Court.
In view of the order, passed by the Sessions Court, the learned
Magistrate recorded verification statement of the complainant and
also he recorded the statement on oath of witness from Dena Bank.
In view of oral as well as documentary evidence placed by
complainant, learned Magistrate passed fresh order dated
24.4.2009 fOR issuing process u/s 138 of Negotiable Instrument Act
against the accused. That order is challenged in the present
application u/s 482 of the Criminal Procedure Code.
4. The learned counsel for the applicant accused contended
that the verification statement is not mere formality and unless the
complainant makes statement on oath in respect of the relevant
appln4514of09.sxw
::: Downloaded on - 01/04/2024 16:51:49 :::
4
facts to make out a case for issuance of process, process cannot be
issued. In support of this contention he placed reliance upon
Sabitha Rammurthy & anr -vs- R B S Channabasavaradhya
AIR 2006 SC 3086, wherein the Hon’ble Supreme Court has
observed in para 7 thus:-
“In a case where the Court is required to issue summons
which would put the accused to some sort of harassment,
the Court should insist strict compliances of the statutory
requirements. In terms of Section 200 of the Code of
Criminal Procedure, the complainant is bound to make
statements on oath as to how the offence has been
committed and how the accused persons are responsible
therefor.”
5. In Captain Lance Irwin Lobo -vs- Ismail D’souza @
Angelo Ismail De Souza & anr (2007 ALL MR (CRI) 623), the
learned Single Judge of this Court, Panji Bench considered the
provisions of section 200, 202 and 204 and observed in para 16 as
follows :-
“16. A conjoint reading of sections 203/204, Cr. P.C shows
that process is to be issued after considering the statement
on oath of the complainant and of the witnesses and the
result of the inquiry or investigation, if any, under Section
appln4514of09.sxw
::: Downloaded on - 01/04/2024 16:51:49 :::
5
202. The reading of the statement on oath of the
complainant u/s 200 Cr. P. C, is not an empty formality.
Commonly it is nicknamed as verification. To verify means to
establish the truth. In other words, verification is done in
order to ascertain as to what is pleaded by the complainant
is true or not. It is with a view to separate chaff from the
grain as many a times complaints do contain unfounded
allegations and it is the duty of the Court to ensure that what
is stated in the complaint is also stated by the complainant
on oath and it is only then that based on such statement the
process can be issued. The corollary of this would be that
unless offences are disclosed from the statement on oath, no
process can be issued only based on averments in the
complaint. The complainant is bound to make a statement
on oath as to how the offence was committed and how the
accused persons are responsible therefor. After the
statement on oath is recorded, a Magistrate is required to
apply his judicial mind to the facts of the case and the law
applicable thereto and find out what offence/s is made out,
notwithstanding that the other party at that stage is
unrepresented. As observed by the Apex Court time and
again, summoning of an accused in a criminal case is a
appln4514of09.sxw
::: Downloaded on - 01/04/2024 16:51:49 :::
6
serious matter and criminal law cannot be set into motion as
a matter of course. A Magistrate is required to examine the
nature of the allegations made in the complaint and the
evidence both oral and documentary to see if it is sufficient
for the complainant to succeed in bringing charge home to
the accused. In other words, the examination of the
complainant on oath is for the purpose of ascertaining
whether a prima facie case is made out against the accused
to issue process so that the issue of process is prevented on
a complaint which is either false or vexatious or intended
only to harass. As observed by the Apex Court in Punjab
national bank and others -vs- Surendra Prasad Sinha (1993
Supp (1) SCC, 499), it is salutary to note that judicial process
should not be an instrument of oppression or needless
harassment. A Magistrate is required to find out whether the
concerned accused should be legally responsible for the
offence charged for. Only on satisfying that the law casts
liability or creates offence against the juristic person or the
persons impleaded then only process would be issued and
at that stage the Court has got to be circumspect in
exercising discretion and should take all the relevant facts
and circumstances into consideration before issuing process
appln4514of09.sxw
::: Downloaded on - 01/04/2024 16:51:49 :::
7
lest it would be an instrument, in the hands of the private
complaint as vendetta to harass the person needlessly.
Vindication of Majesty of justice and maintenance of law and
order in the society are the prima objects of criminal justice
but it would not be the means to wreak personal
vengeance”.
6. In that case certain contract had taken place about the
property in the year l995, wherein a Power of Attorney was
executed and that Power of Attorney was revoked in March,2001 by
issuing public notice. The revocation of the said Power of Attorney
was contested by the accused in that case. The civil suit was also
filed in 2001 for specific performance of the contract and for
damages by the complainant. Sale deed was executed by the
accused as Attorney of the complainant in May,2003. On
25.11.2004, the complainant filed complaint u/s 409, 418 423, 465,
468, 471 and 120-B Indian Penal Code against accused persons.
Process was issued by the learned Magistrate for the offences
except under section 468. The accused challenged that order in the
court of Sessions. The Additional Sessions Judge deleted most of
the sections and maintained the order to issue process only for the
offence of breach of trust u/s 409 IPC. That order was challenged
by the accused before High Court, mainly on the ground that there
appln4514of09.sxw
::: Downloaded on - 01/04/2024 16:51:49 :::
8
was no proper verification of the facts stated in the complaint to
make out a case under section 409 or any other section. Taking
into consideration all these complicated allegations and facts, this
Court held that the complainant had not stated all these facts in his
verification statement to make out a criminal case even for
issuance of process under section 409 and therefore, the
complaint was dismissed.
7. In the present case, in the complaint all the details of the
transactions are given. In the verification statement dated
18.9.2008, the complainant had clearly stated that he had made
payment to the accused and accused had given cheque to him. The
cheque was presented to the bank, but it was unpaid. Cheque was
presented but it was returned unpaid. He asked accused two to
four times for making the payment of money but he failed. Then he
issued demand notice. That notice was received by him and he also
replied. This verification statement is to be read alongwith
documents, which are produced with the complaint. The
documents include, cheque issued by the accused, memos issued
by both the banks, particularly drawee bank, to the effect that the
cheque was being returned unpaid for want of sufficient funds.
8. Taking into consideration the documents filed in support
of the complaint, in my considered opinion, verification statement
appln4514of09.sxw
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9
is complete to make out a case u/s 138 of the Negotiable
Instrument Act. Merely because the complainant stated in the
verification statement that he did not remember the date on which
notice was issued to the accused and the date on which reply was
given by accused, it cannot be said that the complainant has failed
to make out a case u/s 138 of Negotiable Instrument Act.
9. Taking into consideration all the facts and circumstances,
I find no illegality or irregularity in the impugned order passed by
the Magistrate for issuing process. The authorities in case M.S.
Narayana Menon (supra) does not come to the rescue of the
accused. I find no substance in the contentions raised on behalf of
the accused.
10. For the aforesaid reasons, the applications stand
dismissed.
(J. H. BHATIA, J.)
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