Case Note & Summary
The petitioner, Afrojkhan s/o Bashirkhan Pathan, filed a criminal writ petition under Article 227 of the Constitution of India read with Section 482 of the Code of Criminal Procedure, 1973, seeking to quash Summary Criminal Case No.33 of 2017 pending before the Judicial Magistrate, First Class, Nilanga, District Latur. The respondent, Mandodara w/o Madhavrao Kendre, had filed the complaint alleging that the petitioner committed an offence punishable under Section 138 of the Negotiable Instruments Act, 1881. According to the complaint, the respondent had extended a hand-loan of Rs.3,00,000/- to the petitioner, who issued a cheque dated 03-11-2016 drawn on his bank. The cheque was presented for encashment on 15-12-2016 but was returned on 16-12-2016 due to insufficiency of funds. The respondent received the cheque and memo on 17-12-2016 and issued a legal notice on 31-12-2016, which the petitioner refused to accept on 03-01-2017. The complaint was filed on 18-01-2017. After verification, the learned Magistrate issued process against the petitioner on 15-04-2017. The petitioner challenged this order by way of the present writ petition. The court heard the learned advocate for the petitioner, Ms. M. D. Thube-Mhase, and the learned advocates for the respondent, Mr. A. N. Gaddime and A. V. Indrale Patil. The court found that the complaint disclosed a prima facie case and that there were no grounds to quash the proceedings. Consequently, the petition was dismissed.
Headnote
A) Criminal Procedure - Quashing of Complaint - Section 482 CrPC, Article 227 Constitution of India - The petitioner sought quashing of Summary Criminal Case No.33 of 2017 under Section 138 of Negotiable Instruments Act, 1881. The court held that the complaint disclosed a prima facie case and there were no grounds to quash the proceedings. The petition was dismissed. (Paras 1-4)
Issue of Consideration
Whether the complaint under Section 138 of the Negotiable Instruments Act, 1881 should be quashed under Article 227 of the Constitution of India read with Section 482 of the Code of Criminal Procedure, 1973.
Final Decision
The petition is dismissed. The court found no grounds to quash the complaint as it disclosed a prima facie case under Section 138 of the Negotiable Instruments Act, 1881.
Law Points
- Quashing of criminal complaint under Section 482 CrPC
- Article 227 of Constitution of India
- Prima facie case under Section 138 of Negotiable Instruments Act
- 1881
- Refusal of notice as deemed service
Case Details
2019 LawText (BOM) (12) 21
Criminal Writ Petition No.1127 of 2018
Ms. M. D. Thube-Mhase, Mr. A. N. Gaddime, A. V. Indrale Patil
Afrojkhan s/o Bashirkhan Pathan
Smt. Mandodara w/o Madhavrao Kendre
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Nature of Litigation
Criminal writ petition under Article 227 of Constitution of India read with Section 482 CrPC to quash complaint under Section 138 of Negotiable Instruments Act.
Remedy Sought
Petitioner (original accused) sought quashing of Summary Criminal Case No.33 of 2017 pending before Judicial Magistrate, First Class, Nilanga.
Filing Reason
Petitioner alleged that the complaint under Section 138 of Negotiable Instruments Act was not maintainable and sought to quash the proceedings.
Previous Decisions
The learned Judicial Magistrate, First Class, Nilanga had issued process against the petitioner on 15-04-2017 after verification of the complaint.
Issues
Whether the complaint under Section 138 of Negotiable Instruments Act, 1881 should be quashed under Article 227 of Constitution of India read with Section 482 of Code of Criminal Procedure, 1973.
Submissions/Arguments
Petitioner argued that the complaint should be quashed as it did not disclose a prima facie case.
Respondent opposed the petition, contending that the complaint disclosed a prima facie case and the petition was without merit.
Ratio Decidendi
The court held that the complaint disclosed a prima facie case under Section 138 of the Negotiable Instruments Act, 1881, and there were no grounds to quash the proceedings under Article 227 of the Constitution of India read with Section 482 of the Code of Criminal Procedure, 1973.
Judgment Excerpts
Present petition has been filed under Article 227 of Constitution of India read with Section 482 of the Code of Criminal Procedure to quash and set aside the complaint i.e. Summary Criminal Case No.33 of 2017 filed before learned Judicial Magistrate, First Class, Nilanga District Latur, against the present petitioner alleging that, he has committed offence punishable under Section 138 of Negotiable Instruments Act.
Procedural History
The respondent filed Summary Criminal Case No.33 of 2017 on 18-01-2017 before the Judicial Magistrate, First Class, Nilanga. After verification, the Magistrate issued process against the petitioner on 15-04-2017. The petitioner then filed the present criminal writ petition under Article 227 of the Constitution of India read with Section 482 CrPC to quash the complaint.
Acts & Sections
- Constitution of India: Article 227
- Code of Criminal Procedure, 1973: Section 482
- Negotiable Instruments Act, 1881: Section 138
