KIRIT MANGALDAS SHAH Vs. SITARAM DAYALJI PATEL

JUDGEMENT

(1.) Heard learned counsel for the petitioner-accused and learned APP for the State. Learned counsel for the petitioner invited my attention to paragraph 4 of the complaint CC No. 2557/SS/2008 moved before the learned Metropolitan Magistrate, 34th Court, at Borivali which reads as under :

(2.) In the light of the assertions of the complainant (the respondent in the present proceedings), it is more than clear that the present petitioner is not the drawer of the cheque. It was expected of the complainant to prosecute the drawer of the cheque. The complaint also illustrates in paragraph 5 that the accused-petitioner vehemently denied any liability and also disputed issuance of the questioned cheque while putting up his reply by the advocate's no- tice dated 1st August, 2008. In the situation of the matter, issuance of process by the learned Metropolitan Magistrate was uncalled for and likewise the observations of the learned Additional Sessions Judge in his order dated 21st November, 2009 is obliterating the record. The prosecution in terms of section 138 of the Negotiable Instruments Act vide CC No. 2557/SS/2008 pending before the learned Metropolitan Magistrate, 43rd Court, at Borivali is quashed and set aside. Writ Petition disposed of accordingly. Order accordingly.