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Prakash Nanji Thakkar vs The State Of Maharashtra And Anr on 7 August, 2019

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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CRIMINAL APPELLATE JURISDICTION

CRIMINAL WRIT PETITION NO.3362 OF 2019
ALONG WITH
CRIMINAL WRIT PETITION NO.3363 OF 2019
ALONG WITH
CRIMINAL WRIT PETITION NO.3364 OF 2019
ALONG WITH
CRIMINAL WRIT PETITION NO.3365 OF 2019
ALONG WITH
CRIMINAL WRIT PETITION NO.3366 OF 2019

Prakash Nanji Thakkar ]
Age 50 years, Indian Inhabitant, Occ. Advocate ]
Having his address at, ]
Flat No. B/105, Shankar Tower, Plot No.14, ]
Sector 14, Sanpada, Navi Mumbai 400 705 ]…. Petitioner/Accused

versus

1] State of Maharashtra ]
]
2] Deepali Prakash Thakkar ]
Aged 46 years, Indian Inhabitant, ]
Flat No. B-10, Garden View Building, ]….. Respondents
Devidayal Road, Mulund (W) ] Respondent No.2/
Mumbai 400080 ] Org. Complainant.

Mr. Kamlesh Jain for the Petitioner.
Mrs. M R Tidke, APP for the Respondent/State.
Mr. Yashpal Thakkar i/by Mrs. Pravina A Thakkar for Respondent No.2

CORAM : S. S. SHINDE, J
DATE : 07th August 2019

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COMMON ORAL JUDGMENT :-

1 The above group of five Petitions has been filed by the Petitioner,

original accused, challenging the order dated 06/06/2019 passed by the

learned Metropolitan Magistrate, 20th Court, Mazgaon, Mumbai. By the said

order the Trial Court directed the Petitioner to pay interim compensation to the

complainant which is 20% of the cheque amount within 60 days from the date

of the said order.

2 It appears that the 5 cheques, alleged to have been issued by the

Petitioner in favour of the contesting Respondent, have got dishonoured on

being presented in Bank of Respondent No.2, therefore, 5 complainants have

been filed by Respondent No.2 against the Petitioner in the Trial Court and, the

Trial Court has passed five separate orders dated 06/06/2019. Hence these five

Petitions.

3 By consent of the learned counsel for the parties, Writ Petition

No.3362 of 2019 is treated as a lead matter.

4 Rule, with the consent of the learned counsel for the parties made

returnable and heard forthwith.

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5 The facts giving rise to filing of the above Petition in a nutshell can

be stated thus:

The Petitioner herein is the husband of Respondent No.2 herein

who is original complainant. The Petitioner got married to Respondent No.2

on 27/04/2012. The Petitioner was earlier married to one Mrs. Heena Prakash

Thakkar who expired on 16/01/2012 and after the death of his first wife, he

got married to Respondent No.2. It is the case of the complainant that after 6

months of the marriage, Respondent No.2 came to know about her husband

i.e. the Petitioner herein receiving untimely calls, text and whatsapp message

from his office employee Deepali to which Respondent No.2 objected. When

Respondent No.2 objected, the Petitioner started quarreling with her and

declared that he is having intimate relations with the said Deepali. It is the

case of Respondent No.2 that whenever she demanded money from the

Petitioner for grocery and household expenses, he refused to give. It is the case

of Respondent No.2 – complainant that the Petitioner pressurized for signing

certain papers by stating that those papers were the applications for dissolving

marriage. It is her case that the Petitioner was ill treating her and giving

harassment. It is the case of Respondent No.2 that ultimately Petitioner insisted

her that if she signs a Petition for divorce by mutual consent, then the

Petitioner would arrange a residential accommodation of 2BHK for

complainant at Mulund and pay her a lump-sum alimony of Rs.1,30,00,000/-

for dissolving their marriage. The Petitioner then gave a sum of Rs.80,00,000/-

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as a part alimony and promised to arrange a flat in her name and to pay

further balance amount by post dated cheques in her name. Accordingly the

Petitioner issued 25 cheques of Rs.2,00,000/- each. Out of the said cheques,

Respondent No.2, on instructions of Petitioner, deposited five cheques in her

Axis Bank ltd. Mazgaon Branch, Mumbai. It is the case of Respondent No.2

complainant that the said five cheques got dishonoured with remark “account

closed”. The complainant sent a demand notice dated 13/02/2019 to the

Petitioner, which has been replied by the Petitioner. Since the amount of

cheques was not released, Respondent No.2-complainant filed the present

complaints against the Petitioner.

6 After filing the complaint, the learned Metropolitan Magistrate

recorded the verification statement of the original complaint and issued

process/summons against the Petitioner/accused by order dated 08/04/2019.

7 It is the case of the Petitioner that way back in March 2018, the

Petitioner sent a notice under Section 9 of the Hindu Marriage Act to

Respondent No.2 Complainant thereby requesting her to return to her

matrimonial home and further seeking restitution of conjugal rights. It is stated

in the said notice that the complainant has left the Petitioner in the month of

December 2016 after inducing the Petitioner to pay a sum of Rs.80,00,000/- in

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the month of November 2016 in her account for a joint investment purpose.

By the said notice the Petitioner called upon the complainant to bring back

Rs.80,00,000/- which she took away from the Petitioner under the pretext of

joint investment. The said notice was replied to by the original complainant

through her advocate’s reply dated 30/03/2018. Since Respondent No.2 –

original complainant did not return to her matrimonial home, the Petitioner

filed Petition under Section 9 of the Hindu Marriage Act in the Family Court,

Thane. Respondent No.2 replied to the said Petition filed by the Petitioner.

Thereafter Respondent No.2 original complainant moved an application under

Section 24 of the Hindu Marriage Act before the Family Court which was

replied to by the Petitioner. Thereafter the Petitioner has received a demand

notice dated 13/02/2019 from the original complainant in respect of

dishonour of 5 cheques of Rs.2,00,000/- each. The Petitioner has replied the

said demand notice by his reply dated 28/02/2019. Respondent No.2 –

original complainant sent a rejoinder dated 08/03/2019. The said rejoinder

was also replied by the Petitioner vide his letter dated 20/03/2019.

8 Thereafter Respondent No.2 original Complainant has filed

complaint against the Petitioner under Section 138 of the Negotiable

Instruments Act before the learned Metropolitan Magistrate, 20 th Court,

Mazgaon at Sewree, Mumbai. As stated herein above, the learned

Metropolitan Magistrate issued process/summons against the Petitioner under

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Section 138 of the Negotiable Instruments by order dated 08/04/2019.

Thereafter the learned Magistrate recorded a plea of the Petitioner and, by

order dated 06/06/2019 directed him to deposit 20% of the cheque amount as

interim compensation. It is the said order dated 06/06/2019 passed by the

learned Magistrate which is taken exception to by way of the above Writ

Petition.

9             Heard the learned counsel for the parties.

10 The learned counsel appearing for the Petitioner/Accused invites

this Court's attention to the allegations made in the complaint and submits that

even if the said allegations are read in its entirety, the alleged offence is not

disclosed. There are no supporting documents placed on record by the

complainant to prove the averments made in the complaint. It is submitted

that what is alleged in the complaint is that, there was understanding between

the Petitioner/Accused and, Respondent No.2/Complainant that the Petitioner

insisted Respondent No.2 for signing the papers for taking divorce by mutual

consent. It is submitted that there was no such request made by the Petitioner,

and whatever stated in the complaint is only imaginary. It is also submitted

that, even if the allegations are read in its entirety, no offence as alleged is

made out. It is further submitted that there is no legally enforceable debt or

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liability, and therefore, at the threshold if the Petitioner has demonstrated that

there is no legally enforceable debt or liability, in that case the complaint filed

by Respondent No.2 deserves to be quashed and set aside. The learned counsel

for the Petitioner also invites this Court's attention to the unreported judgment

of the Delhi High Court in the case of Harish Kapoor v/s. Akansha Gupta in

Cri. M C. 3869/2007 decided on 04/12/2008.

In response to the preliminary objection raised by the learned

counsel for the contesting Respondent/Complainant that since the plea of the

Petitioner has been recorded by the Trial Court, and therefore, this Court may

not entertain the present Petitions by invoking the writ jurisdiction and

jurisdiction under Section 482 of the Criminal Procedure Code, the learned

counsel for the Petitioner submits that the jurisdiction under Section 482 of the

Criminal Procedure Code can be invoked at any stage of proceedings. In

support of the said contention, the learned counsel for the Petitioner sought to

place reliance on the judgment of this Court (Coram : Prakash D Naik, J) in the

case of Pradeep Khetshi Shah v/s. State of Maharashtra and ors in Criminal

Writ Petition No.1727 of 2017 decided on 07/01/2019 reported in

Laws(Bom)-2019-1-44. The learned counsel for the Petitioner also sought to

place reliance on the judgment of the Apex Court reported in Laws (SC)-2018-

11-14 in the case of Anand Kumar Mohatta and anr v/s. State (Govt. of NCT of

Delhi) Department of Home and Anr. in support of the aforesaid contention.

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It is also submitted by the learned counsel for the Petitioner that if

the complainant has failed to demonstrate that the Petitioner/Accused has to

discharge his legally enforceable debt/liability, in that case, the entire

complaint is liable to be vitiated. He further submitted that merely a plea is

recorded by the Trial Court is not a ground to decline exercising the

jurisdiction under Section 482 of the Criminal Procedure Code.

11 On the other hand, the learned counsel appearing for Respondent

No.2 - original complainant submits that, since the Trial Court has recorded

the plea of the Petitioner and is in process of recording the evidence, and now

the matter is posted for recording of evidence of PW-2, this Court may not

cause any interference in the impugned order passed by the Trial Court. In

support of the aforesaid contention, the learned counsel for Respondent

No.2/complainant invites this Court's attention to the judgment of this Court

(Coram : V M Kanade,J) in the case of Subhiksha Trading Services Ltd and ors

v/s. Kotak Mahindra Bank Limited, a Banking Company and ors in Criminal

Writ Petition No.523 of 2010 decided on 12/08/2010, and in particular

paragraphs 9 and 10 thereof. The learned counsel for Respondent

No.2/complainant also sought to place reliance on the judgment of the Apex

Court reported in Manu/SC/0296/2015 in the matter of HMT Watches Ltd.

v/s. M A Abida and ors. and in particular paragraph 10 thereof, and judgment

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of the Apex Court in Subramanium Sethuraman v/s. State of Maharashtra and

ors, reported in Manu/SC/0770/2004.

It is further submitted by the learned counsel for Respondent

No.2/complainant that if this Court undertakes adjudication of the

issues/points raised by the Petitioner, it may amount to adjudication of the

disputed questions of facts, which is not desirable while exercising the

jurisdiction under Section 482 of the Criminal Procedure Code. It is submitted

that the facts in the case of Pradeep Khetshi Shah (supra) are clearly

distinguishable vis-a-vis the facts in the present case. In the said case, the

Petitioner therein placed on record the documents of impeachable character

and uncontroverted which would indicate that the Petitioner therein resigned

prior to issuance of the cheque and therefore in the facts of that case this Court

held that the jurisdiction under Section 482 can be invoked in the appropriate

cases even if the plea is recorded by the Trial Court.

12 Upon appreciation of the rival contentions and perusal of the

pleadings and grounds taken in the Petition, annexures thereto and the

averments made in the complaint, this Court is of the opinion that if the

contention of the Petitioner that he did not ask Respondent No.2/Complainant

to sign the papers so as to apply for mutual divorce, and further as a matter of

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fact no such Petition is filed, if considered, the same would lead to undertake

an exercise of adjudication of disputed question of facts. The contesting

Respondent/complainant has made assertion in the complaint that the

Petitioner had asked her to sign the papers so as to apply for mutual divorce

with consent, and also he agreed to pay amount to the contesting Respondent/

complainant. The contesting Respondent/complainant in paragraph 9 of the

complaint has also alleged as under :-

"9 I say that in the month of December 2016, the
Accused paid me part alimony of Rs.80,00,000/- and
promised to arrange a 2 BHK flat in my name at Mulund
and further promised to pay the balance amount of
lumpsum alimony by issuing post-dated cheques in my
name from the bank account of the Accused, maintained
by him with State of Bank of Hyderabad, Khandeshwar
Branch, Navi Mumbai. At that time, the Accused signed
and issued in my favo7ur, 25 post dated cheques of
Rs.2,00,000/- each, all drawn on his Bank Account
maintained with State Bank of Hyderabad, Khandeshwar
Branch, Navi Mumbai and promised me that he had
sufficient funds in his above referred bank account and
that the said post dated cheques would be duly honoured
when presented to the bank. I say that in this manner, the
Accused through me out of the said premises by assuring
that he would pay me lump sum alimony of rupees
1,30,00,000/- and arrange a 2 BHK flat in my name at
Mulund, Mumbai.

13 Now coming to the contention of the learned counsel for the

Respondent/Complaint that since the plea of the Petitioner has been recorded

by the trial Court, this Court may not entertain the present Petition. It is

required to be noted that admittedly the plea of Petitioner has been recorded

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and the matter is in process of recording of evidence, and posted for recording

of evidence of PW-2. The Apex Court in Subramanium Sethuram's case

(supra) has observed that once the plea of the accused is recorded under

Section 252 of the Code, the procedure contemplated under Chapter XX has to

be followed which is to take the trial to its logical conclusion. Paragraph 16 of

the said judgment is material and is reproduce herein under for the sake of

ready reference :-

"16 The next challenge of the learned counsel for the
appellant made to the finding of the High Court that once
a plea is recorded in a summons case it is not open to the
accused person to seek a discharge cannot also be
accepted. The case involving a summons case is covered
by Chapter XX of the Code of which does not
contemplates a stage of discharge like Section 239 which
provides for a discharge in a warrant case. Therefore, in
our opinion the High Court was correct in coming to the
conclusion once the plea of the accused is recorded under
Section 252 of the Code the procedure contemplated
under Chapter XX has to be followed which is to take the
trial to its logical conclusion."

The learned Single Judge in the case of Subhiksha Trading

Services Ltd. (supra) has observed that if the plea has been, it will not be

possible to interfere with the order of issuance of process. Paragraphs 9 and 10

of the said judgment are material and are reproduced herein under for the sake

of ready reference:-

9 After having heard both the Counsel at length, in
my view, no case is made out for interfering with the
order of issuance of process. Firstly, in the present case,

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plea has already been recorded on 18.9.2009, affidavit by
way of Examination-in-Chief of the Respondent No.1
Company's representative has been filed on 22.12.2009.
The Apex Court, in the case of SectionSubramanium Sethuraman
v. State of Maharashtra, (para16, Nikumbh Dairy Products
ltd. v. State of Maharashtra (para 9) and in respect of
prosecution under other sections in the case of SectionRatilal
Bhanji Mithani vs. State of Maharashtra, reported in AIR
1979 Supreme Court 94 and in the case of SectionNandkishor
Rampal Lohiya and others v. State of Maharashtra,
reported in 2001 Cri. L.J. 2742 has held that the High
Court should not ordinarily interfere in its inherent
jurisdiction after the plea is recorded and the recording of
evidence has commenced. On this ground alone, in my
view, it will not be possible to interfere with the order of
issuance of process. However, since both the parties
argued the matters on these points at length, it is
necessary to briefly consider the submissions made by the
learned Senior Counsel for the Petitioners.

10 So far as question of existence of debt or liability
is concerned, it is quite well settled that this issue has to
be decided only during the trial and cannot be decided
earlier in view of the presumption under Sectionsections 118 and
Section139 of the Negotiable Instruments Act. Though reliance is
placed on one of the documents to show that the credit
facility was extended till 31st January, 2009. This fact has
been disputed by the Complainant and,therefore, it
cannot be gone into by this Court under Sectionsection 482 of the
Criminal Procedure Code. On the question of territorial
jurisdiction also, the cheque which was issued was "At
Par" cheque and, as such,could be deposited at any of the
branches of the drawee bank and, therefore, the
Complainant was informed to deposit the same in
Mumbai Branch because it being a "At Par" cheque.

Secondly, the registered office of the Complainant is at
Mumbai, the notice was issued from Mumbai and further
the credit facilities were also sanctioned from Mumbai
and, therefore, in view of the judgment of the Apex Court
in the case of SectionK.Bhaskaran v. Sankaran Vaidhyan Balan
Anr. Reportedin 1999 (4) ALL MR 452 and also the
judgment of the Division Bench of this Court in the case of
Preetha Babu v. Voltas Ltd. and Ors., the judgment of the
Bombay High Court dated 3rd February, 2010 in Criminal

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Application No. 3158 of 2010 and judgment of the Apex
Court in SectionSamshad Begum v. B. Mohammed, reported in
AIR2009 SC 1355, the Bombay Court, therefore, will have
jurisdiction to try and decide the case. Lastly, it was
argued that the provisions of Sectionsection 202 of the Cr.P.C.
have not been applied to the present case. This Court in
the case of Bansilal S.Kabra vs. Global Trade Finance Ltd.
Anr., decided on 9th July, 2010and 29th July, 2010
passed in Criminal Application No.1344 of 2010, has held
that the said provision is directory and not mandatory. In
another judgment of the Learned Single Judge of this
Court wherein it has been held that the said provision is
mandatory. However, the Learned Single Judge in the said
case was pleased to decide the said case, however,
proceeded to consider the cases wherein the accused had
come to the Court at a belated stage and was pleased to
reject such applications which were filed in the High
Court on the said ground. Therefore, merely because the
issue has been referred to the Full Bench, it does not
mean that all such cases wherein such issue is raised
should be stayed."

The Apex Court in paragraph 10 of HMT Watches Ltd's case

(supra) observed that whether the cheques were given as security or not, or

whether there was outstanding liability or not, is a question of fact which could

have been determined only by the trial Court after recording evidence of the

parties. The said paragraph 10 is reproduced herein under for the sake of

ready reference :-

"10. Having heard learned counsel for the parties, we
are of the view that the accused (respondent no.1)
challenged the proceedings of criminal complaint cases
before the High Court, taking factual defences. Whether
the cheques were given as security or not, or whether
there was outstanding liability or not is a question of fact

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which could have been determined only by the trial court
after recording evidence of the parties. In our opinion, the
High Court should not have expressed its view on the
disputed questions of fact in a petition under Section 482
of the Code of Criminal Procedure, to come to a
conclusion that the offence is not made out. The High
Court has erred in law in going into the factual aspects of
the matter which were not admitted between the parties.
The High Court further erred in observing that Section
138(b) of N.I. Act stood uncomplied, even though the
respondent no.1 (accused) had admitted that he replied
the notice issued by the complainant. Also, the fact, as to
whether the signatory of demand notice was authorized
by the complainant company or not, could not have been
examined by the High Court in its jurisdiction under
Section 482 of the Code of Criminal Procedure when such
plea was controverted by the complainant before it."

In the light of aforesaid discussion, this Court is of the opinion

that, whether there was any agreement between the Petitioner/Accused and

Respondent No.2/complaint would be a matter for appreciation of the

contentions of the parties by the trial Court. It would depend upon

appreciation of evidence, and the documents filed in the Trial Court. In a

given case there may be oral agreement or written agreement as the case may

be. In the facts of the case, the complaint has been filed by Respondent

No.2/complainant against her husband i.e. the Petitioner herein, and therefore,

what transpired between them would be difficult to visualized unless the

averments made in the complaint and the documents placed on record are

tested before the Trial Court.

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14 The jurisdiction under Section 482 of the Criminal Procedure

Code, can be exercised at any stage of the proceedings, however, it will depend

upon the facts and circumstances of each case. If the documents of

impeachable character or uncontroverted are placed on record, in a given case,

this Court may endeavour to invoke the jurisdiction under Section 482 of the

Criminal Procedure Code, irrespective of the stage of proceedings before the

trial Court. However, in the facts of the present case, the plea has already been

recorded by the Trial Court, the PW-1 has already been examined and, PW-2

would be examined on next date. In that view of the matter, no case for

interference is made out.

15 All the Petitions stand rejected. All contentions raised on merits

are kept open for being agitated before the Trial Court. Needless to state that

the observations made herein above are prima facie in nature and confined to

the adjudication of the present Writ Petitions.

16 In the peculiar facts of the present case, since the complaint is

filed by Respondent No.2 - wife against the Petitioner - husband under Section

138 of the Negotiable Instruments Act, it is desirable that the concerned Court

shall expedite the hearing of the proceedings and take it to the logical ends as

expeditiously as possible, however, on or before 30 th September 2019, keeping

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in view the relevant provisions of the SectionNegotiable Instruments Act as also the

judgment of the Apex Court in the case of Indian Bank Association and others

v/s. Union of India and others, reported in (2014) 5 SCC 590.

[S. S. SHINDE , J]

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