Case Note & Summary
The petitioner, Captain Govind Narayan Sharma, a Marine Captain by profession, was appointed by Respondent No.1, a shipping company, as Master on board the vessel m.v. "Maratha Cruiser" for a period of three months. The contract stated that the period could be extended. The petitioner was paid his wages by cheque, which was dishonoured. The petitioner filed a complaint under Section 138 of the Negotiable Instruments Act, 1881. The Metropolitan Magistrate, 33rd Court, Ballard Estate, Mumbai, passed an order directing the police to file a complaint under Section 138 of the Negotiable Instruments Act, 1881. The petitioner challenged this order before the Additional Sessions Judge, who dismissed the revision. The petitioner then filed a writ petition under Article 227 of the Constitution of India before the Bombay High Court. The High Court held that the petitioner had an alternative remedy of filing a private complaint and therefore the writ petition was not maintainable. The court also held that the Magistrate had jurisdiction to pass the order directing the police to file a complaint. The petition was dismissed.
Headnote
A) Criminal Procedure - Alternative Remedy - Maintainability of Writ Petition under Article 227 - The petitioner challenged the order of the Magistrate directing the police to file a complaint under Section 138 of the Negotiable Instruments Act, 1881. The High Court held that the petitioner had an alternative remedy of filing a private complaint and therefore the writ petition was not maintainable. (Para 4)
B) Negotiable Instruments Act - Dishonour of Cheque - Section 138 - Jurisdiction of Magistrate - The Magistrate had directed the police to file a complaint under Section 138 of the Negotiable Instruments Act, 1881. The High Court held that the Magistrate had jurisdiction to pass such an order and the petition was dismissed. (Para 5)
Issue of Consideration
Whether the order passed by the Additional Sessions Judge and the Metropolitan Magistrate directing the police to file a complaint under Section 138 of the Negotiable Instruments Act, 1881 was without jurisdiction and whether the petition under Article 227 of the Constitution of India was maintainable in view of alternative remedy available to the petitioner.
Final Decision
The High Court dismissed the writ petition, holding that the petitioner had an alternative remedy of filing a private complaint and that the Magistrate had jurisdiction to pass the order directing the police to file a complaint under Section 138 of the Negotiable Instruments Act, 1881.
Law Points
- Article 227 of the Constitution of India
- Section 138 of the Negotiable Instruments Act
- 1881
- Section 156(3) of the Code of Criminal Procedure
- 1973
- Alternative remedy
- Jurisdiction of Magistrate
Case Details
2010 LawText (BOM) (07) 116
Writ Petition No.1414 of 2008
Mr. C.R.S. Mishra i/b Pt. C.R.S. Mishra & Co for the Petitioner, Mr. A.S. Shitole, APP for the State, Mr. Jaiprakash Sawant for Respondent Nos. 1 and 2
Captain Govind Narayan Sharma
Threewin Maritime (India) Private Limited, Galleon Shipping Private Limited, The Union of India
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Nature of Litigation
Criminal writ petition under Article 227 of the Constitution of India challenging orders of Magistrate and Sessions Judge directing police to file complaint under Section 138 of Negotiable Instruments Act, 1881.
Remedy Sought
Petitioner sought to quash the order of the Metropolitan Magistrate directing the police to file a complaint under Section 138 of the Negotiable Instruments Act, 1881 and the order of the Additional Sessions Judge dismissing his revision.
Filing Reason
Petitioner's cheque for wages was dishonoured; he filed a complaint under Section 138 of the Negotiable Instruments Act, 1881. The Magistrate directed the police to file the complaint, which the petitioner challenged as without jurisdiction.
Previous Decisions
The Metropolitan Magistrate, 33rd Court, Ballard Estate, Mumbai passed an order directing the police to file a complaint under Section 138 of the Negotiable Instruments Act, 1881. The Additional Sessions Judge dismissed the revision against that order.
Issues
Whether the order of the Magistrate directing the police to file a complaint under Section 138 of the Negotiable Instruments Act, 1881 was without jurisdiction.
Whether the writ petition under Article 227 of the Constitution of India was maintainable in view of alternative remedy available to the petitioner.
Submissions/Arguments
Petitioner argued that the Magistrate had no jurisdiction to direct the police to file a complaint under Section 138 of the Negotiable Instruments Act, 1881.
Respondents argued that the petitioner had an alternative remedy of filing a private complaint and therefore the writ petition was not maintainable.
Ratio Decidendi
The High Court held that the petitioner had an alternative remedy of filing a private complaint under Section 138 of the Negotiable Instruments Act, 1881 and therefore the writ petition under Article 227 of the Constitution of India was not maintainable. The court also held that the Magistrate had jurisdiction to pass the order directing the police to file a complaint.
Judgment Excerpts
By this Petition filed under Article 227 of the Constitution of India, Petitioner is challenging the order passed by the Additional Sessions Judge and also the order passed by the Metropolitan Magistrate’s 33rd Court, Ballard Estate, Mumbai.
The Petitioner had an alternative remedy of filing a private complaint and therefore the writ petition was not maintainable.
Procedural History
The petitioner filed a complaint under Section 138 of the Negotiable Instruments Act, 1881. The Metropolitan Magistrate, 33rd Court, Ballard Estate, Mumbai passed an order directing the police to file a complaint. The petitioner filed a revision before the Additional Sessions Judge, which was dismissed. The petitioner then filed a writ petition under Article 227 of the Constitution of India before the Bombay High Court.
Acts & Sections
- Constitution of India: Article 227
- Negotiable Instruments Act, 1881: Section 138
- Code of Criminal Procedure, 1973: Section 156(3)
