SAVITA Vs. RAJESH DAMODAR SARODE

JUDGEMENT

(1.) Heard Mr. Bhandarkar, the learned counsel for the applicants, Mr. Dhote, advocate holding for Mr. A. P. Tathod, the learned counsel for non-applicant No. 1 and Mr. Kankale, the learned A. P. P. for non-applicant No. 2.

(2.) By this application, the applicants seek quashing of the proceedings in criminal Complaint Case No. 2109/2004 filed by the non-applicant No. 1 purporting to be under section 138 read with section 142 of the Negotiable instruments Act. The non-applicant No. 1 filed the above case in the Court of the judicial Magistrate, First Class, Gondia alleging commission of the offence under section 138 of the Negotiable Instruments Act on the ground that Hiralal Sorle the husband of the applicant No. 1 and father of the applicants 2 to 4 had issued two cheques dated 10-3-2003 for Rs. 25,000/- each in his favour and when notice was issued to Hiralal Sorle claiming the amount of the said cheques, the notice was returned with an endorsement that Hiralal had expired. Notice was also issued to applicant No. 2. However, it is to be noted that it is the case of the non-applicant No. 1 himself that the cheques were issued by Hiralal only and not by applicant No. 2. The non-applicant No. 1 filed the case against the applicants who, according to him, are the legal representatives of said Hiralal. After verification, the Magistrate issued process against the present applicants. The applicants have challenged the issuance of process as well as filing of the complaint as being a complete abuse of the process of the Court. The applicants have also prayed for appropriate compensation for untenable prosecution.

(3.) According to Mr. Bhandarkar, the learned counsel appearing for the applicants, the process issued by the Magistrate is without jurisdiction inasmuch as admittedly as per the non-applicant No. 1 himself the cheques which were dishonoured were issued by deceased Hiralal. Therefore, no criminal proceedings could have been filed against the applicants who are the legal representatives of deceased Hiralal. According to the learned counsel for the applicants on a plain reading of section 138 of the Negotiable Instruments Act it is clear that no proceedings alleging the offence under section 138 of the Act can be filed against the legal representatives. In support of his submissions, the learned counsel relied upon the Judgment of the Andhra Pradesh High Court in the case of Bupinder lima and others vs. State of A. P. and another, 1999 (4) All MR (Journal) 20. Mr. V. S. Dhote, the learned counsel appearing on behalf of non-applicant No. 1 has not seriously disputed the submissions made by the learned counsel for the applicants. Mr. Kankale, the learned A. P. P. appearing on behalf of non-applicant no. 2 leaves the matter to this Court.