Full Judgment Text
0808WP515.18Judgment 1/4
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH, NAGPUR.
CRI. WRIT PETITION NO. 515 OF 2018
PETITIONER : Mittal s/o Sharad Kothari, Aged about 46
st
(Ori. Accused) years, Occupation Service, R/o A4, 1
Floor, Balkrishna Apartment, Laxmi
Nagar, Nagpur.
...VERSUS...
RESPONDENT : Shree Kanyaka Nagari Sahakari Bank
(Ori.Complainant) Limited, Chandrapur, having its Head
Office at Raghuvanshi Complex, Bazar
Ward, Chandrapur.
Mr. R. D. Zode, counsel h/f Mr. P. P. Kothari for the petitioner.
Mr.A.I.Shah, counsel for the respondent.
CORAM : MANISH PITALE, J.
DATE : 08.08.2018.
O R A L J U D G M E N T
Heard.
2. Rule . Rule made returnable forthwith. The petition is
heard finally with the consent of the learned counsel for the
parties.
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0808WP515.18Judgment 2/4
3. By this writ petition, the petitioner (original accused)
has challenged order dated 11/04/2018 passed by the Court of
Judicial Magistrate First Class, Nagpur and Special Court for
Section 138 of Negotiable Instruments Act, 1881 proceedings,
whereby the Magistrate has rejected the objection raised on behalf
of the petitioner pertaining to memo issued by the bank for
dishonour of cheque in the present case and directed that the said
document be marked as Exhibit22.
4. The respondent (original complainant) filed
complaint before the Magistrate for dishonour of cheque of
Rs.12,000/ purportedly issued by the petitioner herein. It is
claimed that when the said cheque was deposited, it was
returned/dishonoured by memo dated 13/08/2015 issued by the
bank on the ground of “Insufficient Funds”. The respondent
sought to place on record the said memo of dishonour of cheque
dated 13/08/2015, allegedly issued by the bank.
5. A perusal of the said document shows that it does not
bear official mark of the bank and it also does not bear the
signature of any bank official. There is a note at the bottom of the
document, which shows that being a computer generated advice,
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0808WP515.18Judgment 3/4
it does not require signature. When the said document was sought
to be placed on record before the Magistrate by the respondent,
an objection was raised on behalf of the petitioner that it could
not be exhibited, as it did not bear either the official mark of the
bank or signature of the bank official. The petitioner contended
that if such a document was permitted to be exhibited, any
complainant would be in a position to create such a document on
a computer with the aforesaid note at the bottom and then place it
on record as proof of dishonour of cheque. It was contended that
the Magistrate did not apply his mind to this aspect of the matter,
while rejecting the objection of the petitioner and directing that
the said document be marked as Exhibit22.
6. In response, it is contended on behalf of the
respondent that merely because the said document stood
exhibited, no prejudice was caused to the petitioner. The said
contention cannot be accepted, because the petitioner has raised
objection at the first available opportunity. The marking of the
document as an exhibit does have a serious implication in such
cases. Even otherwise, the respondent can avail of other modes of
proving that the cheque in question was indeed dishonoured by
examining concerned bank official or placing on record certificate
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0808WP515.18Judgment 4/4
under section 65B of the Indian Evidence Act, 1872, regarding
the memo in question. But, if the said document in question is
permitted to be accepted, it would lead to a situation where the
respondent as the complainant would rely on a document that has
no official mark of the bank or signature of any bank official to
claim proof of dishonour of cheque. This cannot be permitted and
it shows that the objection raised by the petitioner was valid.
7. The Magistrate has proceeded in a mechanical
manner in the present case and rejected the objection of the
petitioner, only on the ground that the aforesaid note on the
document in question, stated that it being a computer generated
device, no signature was required. The approach adopted by the
Magistrate is erroneous. It is found that the order rejecting the
objection raised on behalf of the petitioner and marking the
document in question as Exhibit22, is unsustainable.
Accordingly, this writ petition is allowed. The impugned order is
set aside. The objection raised by the petitioner is sustained.
8. Rule is made absolute in the above terms.
JUDGE
KHUNTE
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH, NAGPUR.
CRI. WRIT PETITION NO. 515 OF 2018
PETITIONER : Mittal s/o Sharad Kothari, Aged about 46
st
(Ori. Accused) years, Occupation Service, R/o A4, 1
Floor, Balkrishna Apartment, Laxmi
Nagar, Nagpur.
...VERSUS...
RESPONDENT : Shree Kanyaka Nagari Sahakari Bank
(Ori.Complainant) Limited, Chandrapur, having its Head
Office at Raghuvanshi Complex, Bazar
Ward, Chandrapur.
Mr. R. D. Zode, counsel h/f Mr. P. P. Kothari for the petitioner.
Mr.A.I.Shah, counsel for the respondent.
CORAM : MANISH PITALE, J.
DATE : 08.08.2018.
O R A L J U D G M E N T
Heard.
2. Rule . Rule made returnable forthwith. The petition is
heard finally with the consent of the learned counsel for the
parties.
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0808WP515.18Judgment 2/4
3. By this writ petition, the petitioner (original accused)
has challenged order dated 11/04/2018 passed by the Court of
Judicial Magistrate First Class, Nagpur and Special Court for
Section 138 of Negotiable Instruments Act, 1881 proceedings,
whereby the Magistrate has rejected the objection raised on behalf
of the petitioner pertaining to memo issued by the bank for
dishonour of cheque in the present case and directed that the said
document be marked as Exhibit22.
4. The respondent (original complainant) filed
complaint before the Magistrate for dishonour of cheque of
Rs.12,000/ purportedly issued by the petitioner herein. It is
claimed that when the said cheque was deposited, it was
returned/dishonoured by memo dated 13/08/2015 issued by the
bank on the ground of “Insufficient Funds”. The respondent
sought to place on record the said memo of dishonour of cheque
dated 13/08/2015, allegedly issued by the bank.
5. A perusal of the said document shows that it does not
bear official mark of the bank and it also does not bear the
signature of any bank official. There is a note at the bottom of the
document, which shows that being a computer generated advice,
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0808WP515.18Judgment 3/4
it does not require signature. When the said document was sought
to be placed on record before the Magistrate by the respondent,
an objection was raised on behalf of the petitioner that it could
not be exhibited, as it did not bear either the official mark of the
bank or signature of the bank official. The petitioner contended
that if such a document was permitted to be exhibited, any
complainant would be in a position to create such a document on
a computer with the aforesaid note at the bottom and then place it
on record as proof of dishonour of cheque. It was contended that
the Magistrate did not apply his mind to this aspect of the matter,
while rejecting the objection of the petitioner and directing that
the said document be marked as Exhibit22.
6. In response, it is contended on behalf of the
respondent that merely because the said document stood
exhibited, no prejudice was caused to the petitioner. The said
contention cannot be accepted, because the petitioner has raised
objection at the first available opportunity. The marking of the
document as an exhibit does have a serious implication in such
cases. Even otherwise, the respondent can avail of other modes of
proving that the cheque in question was indeed dishonoured by
examining concerned bank official or placing on record certificate
::: Uploaded on - 13/08/2018 ::: Downloaded on - 02/06/2024 02:57:56 :::
0808WP515.18Judgment 4/4
under section 65B of the Indian Evidence Act, 1872, regarding
the memo in question. But, if the said document in question is
permitted to be accepted, it would lead to a situation where the
respondent as the complainant would rely on a document that has
no official mark of the bank or signature of any bank official to
claim proof of dishonour of cheque. This cannot be permitted and
it shows that the objection raised by the petitioner was valid.
7. The Magistrate has proceeded in a mechanical
manner in the present case and rejected the objection of the
petitioner, only on the ground that the aforesaid note on the
document in question, stated that it being a computer generated
device, no signature was required. The approach adopted by the
Magistrate is erroneous. It is found that the order rejecting the
objection raised on behalf of the petitioner and marking the
document in question as Exhibit22, is unsustainable.
Accordingly, this writ petition is allowed. The impugned order is
set aside. The objection raised by the petitioner is sustained.
8. Rule is made absolute in the above terms.
JUDGE
KHUNTE
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