ROHINTON FAREDOOM DEOLALIWALA Vs. VANITA S VALECHA

JUDGEMENT

(1.) The facts of these Writ petitions and contentions which are raised by the petitioner in these petitions are identical and therefore, a reference is made to the facts of the case in Writ Petition No. 2546 of 2005. The petitioner is an accused in a private complaint filed by the first respondent under section 138 of the negotiable Instruments Act, 1881. The learned magistrate issued process on the complaint. A revision Application preferred by the petitioner challenging the order issuing process has been rejected by the learned additional Sessions Judge.

(2.) The learned Counsel appearing for the petitioner invited my attention to notice dated 17th June, 2004 and submitted that the notice has been issued by M/s. S. P. Valecha and Associates. He submitted that M/s. S. P. Valecha and Associates are not the complainants in every complaint. He submitted that there is no specific demand in the said notice and there is no indication in the said notice as to whom payment should be made. He submitted that on the basis of a single notice more than one complaint could not have been filed. He also invited my attention to one of the earlier letters dated 4th June, 2004 and submitted that there was no specific demand in the said letter. He invited my attention to assertion made in paragraph No. 10 of the complaint and in particular the assertion that the accused have failed and neglected to remit the loan amount covered under the said cheques to the complainant. He submitted that all these questions go to the root of the matter and ought to have been examined by the learned Magistrate.

(3.) I have considered the submissions made by the learned Counsel appearing for the petitioner. The Apex Court in the case of (Monaben Shah and Anr. v. State of Gujarat) , 2004 (2) Bom. C. R. (Cri. ) (S. C. ) 512 : (2004) 7 supreme Court Cases Page 15 held that if the substance of the allegations made in the complaint under section 138 of the said act of 1881 fulfil the requirements of the said section, the complaint has to proceed and is required to be tried. The Apex Court further held that while construing a complaint under section 138 of the said Act hypertechnical approach should not be adopted so as to quash the same and power of quashing should be exercised very sparingly. The Apex Court further held that, where, read as whole, factual foundation for the offence has been laid in the complaint, it should not be quashed. The Apex court further observed that it is not necessary to reproduce language of section 141 verbatim in the complaint and the complaint is required to be read as a whole. In the case of (Dalmia Cement (Bharat) Ltd. v. Galaxy Traders and Agencies Ltd. and Ors. ) , 2001 (5) Bom. C. R. (S. C. ) 328 : (2001) 6 supreme Court Cases Page 463 the Apex Court observed that having regard to intention of the legislature, the provisions of the section 138 of the said Act are required to be interpreted in the light of the objects intended to be achieved by it. It is further observed that efforts to defeat the objectives of law by resorting to innovative measures and methods are to be discouraged.