NITESH JAYANTILAL JAIN Vs. STATE OF MAHARASHTRA

JUDGEMENT

(1.) Heard learned counsel for the parties.

(2.) The applicant before this Court is the original accused while respondent No.2 is the original complainant. The complainant appln4514of09.sxw filed complaint u/s 138 of the Negotiable Instrument Act in Metropolitan Magistrate, 7th Court at Dadar and it came to be registered as Criminal case No.5342/SS/2005. According to complainant on the request of accused, he advanced loan of Rs. 1,00,000/- to the accused, which he assured to repay within the stipulated period. He issued post dated cheque dated 21.4.2005 in favour of the complainant. The cheque was drawn on Dena Bank, Worli Branch, Mumbai. The cheque was presented for encashment, but it was returned with return memo dated 27.5.2005 of Dena Bank and return memo dated 28.5.2005 from United Bank of India through which the complainant had presented cheque to Dena Bank. The endorsement from Dena Bank showed that the cheque was returned unpaid for 'funds insufficient'. After that notice dated 25.6.2005, was issued calling upon the accused to make payment. The notice was received by him and he also replied to the said notice through his advocate on 8.7.2005. He failed to make payment within the stipulated period. Therefore, complaint u/s 138 of the Negotiable Instrument Act.

(3.) On the basis of that complaint, learned Metropolitan Magistrate, directed to issue process against the accused u/s 138 Negotiable Instrument Act. That order was challenged by the accused in Revision Application No.299 of 2007 on the ground that appln4514of09.sxw process was issued without following the procedure prescribed under section 200 which requires recording the statement of the complainant to verify the contents of the complaint. The learned Additional Sessions Judge, by order dated 25.1.2008, allowed that revision application setting aside the order passed by the Magistrate. The learned Additional Session Judge directed the Magistrate to proceed with the complaint from the stage of recording verification statement of the complainant and to proceed for issuing process as per law. The accused was not satisfied with that order and he filed Criminal Writ Petition No.318 of 2008. That writ petition was dismissed upholding the order of Sessions Court. In view of the order, passed by the Sessions Court, the learned Magistrate recorded verification statement of the complainant and also he recorded the statement on oath of witness from Dena Bank. In view of oral as well as documentary evidence placed by complainant, learned Magistrate passed fresh order dated 24.4.2009 fOR issuing process u/s 138 of Negotiable Instrument Act against the accused. That order is challenged in the present application u/s 482 of the Criminal Procedure Code.