SHIRISH SURESH WELLING Vs. SANGEETA AVINASH MARATHE

JUDGEMENT

(1.) THIS writ petition is filed challenging the order passed by the learned Magistrate, First Class, Link Court, Pune, which was confirmed by the judgment of the 7th Additional Sessions Judge, Pune in Criminal Revisional Application No. 581/99.

(2.) THE complaint was filed against the petitioner by Smt. Sangeeta Avinash Marathe under section 138 of the Negotiable Instrument Act, for having dishonoured the cheque issued by the petitioner in the name of Mrs. Sangeeta Avinash Marathe. While that complaint was pending an application was made by the petitioner under section 395 of Cri. P. C. requesting the Magistrate to refer the matter to the High Court as section 138 of the N. I. Act is violative of Article 14 of the Constitution of India. The learned Magistrate after hearing the parties, has come to the conclusion that the section cannot be said to be invalid or unconstitutional as offending Article 14 of the Constitution of India, and therefore it need not be referred to the High Court under section 395 of Cri. P. C. and the application was rejected by the Magistrate. Against the said order a Revision Application was filed. In Revision also the learned Sessions Judge has gone into the aspect of the constitutional validity of section 138 and found that no interference is called for in the order passed by the Magistrate. It is in this circumstances that the petitioner approached this Court by way of this writ petition.

(3.) THE learned Counsel for the petitioner Mr. Sakhardande has contended that the Magistrate was wrong in holding that no case has been made out by the petitioner before the Court that section 138 is violative of Article 14 of the Constitution of India and he submits that the refusal to refer the matter to the High Court by the Magistrate under section 395 of Cri. P. C. is illegal because when a question of constitutional validity of section is raised before the Magistrate, he has under the obligation to refer the matter to the High Court.