B RAGHAVAN Vs. STATE OF MAHARASHTRA

JUDGEMENT

(1.) IN Criminal Writ Petition No.625 of 1994 the petitioner-accused has filed this writ petition under Article 227 of the Constitution of India as well as under section 482 Cr.P.C. and prayed for appropriate writ or direction and challenged the order passed by the learned Additional Chief Metropolitan Magistrate, 38th Court, Ballard Estate, Bombay wherein the learned Magistrate had issued process against the petitioner under section 138 of the Negotiable Instruments Act, 1881 in Case No. 166/S of 1994 and also challenged the order passed by the learned Metropolitan Magistrate, 33rd Court, Ballard Estate dated 7-12-1993 below the application for discharge filed by the petitioner-accused dated 27-8-1993 and prayed that the issuance of process against the petitioner be quashed and the petitioner-accused be discharged from the case being Criminal Case No.166/S of 1994 filed by the respondent No.2 - original complainant.

(2.) IN Criminal Writ Petition No.626 of 1994 the petitioner has similarly filed the petition under Article 227 of the Constitution of India as well as under section 482 Cr.P.C. and prayed that the proceeding initiated by the complainant by filing complaint in the court of the learned Addl.Chief Metropolitan Magistrate, 38th Court, Ballard Estate, Bombay wherein the learned Magistrate has issued process against the petitioner for the offence under section 138 of the Negotiable Instruments Act, 1881 in Case No. 394/S of 1994. The petitioner has also challenged the order of the learned Addl.Chief Metropolitan Magistrate, 38the Court, Ballard Estate dated 7-12-1993 passed below application of the petitioner-accused dated 27-8-1993 wherein the petitioner has prayed for discharge in the said case in connection with the complaint filed by the respondent No.2 - original complainant. The petitioner and the respondents are both common in the criminal case filed by the complainant and the prayer is similar. At the request of the learned counsel for the parties, this court is disposing of the matter by the common judgment.

(3.) THE learned counsel appearing on behalf of the petitioner has submitted that the court below was not right in issuing process against the petitioner and further submitted that the learned Addl. Metropolitan Magistrate has committed error in deciding the application for discharge submitted by the petitioner dated 27-8-1993. The learned counsel for the petitioner has accordingly prayed that considering the complaint itself the petitioner has not committed any offence much less that of an offence under the provisions of section 138 of the Negotiable Instrument Act. It is the submission of the learned counsel that on perusing the complaint filed by the respondent-complainant, no case is made out for which the learned Magistrate has issued process against the petitioner for the offence under section 138 of the Negotiable Instrument Act and accordingly prayed that the said complaint filed by the complainant against the petitioner be quashed. It is also the contention of the learned counsel that the complaint indicates that the dispute is of a civil nature and by virtue of the fact that the petitioner accused has retired from the partnership firm and the liability of the said firm is not on the petitioner, the learned Magistrate ought to have dismissed the complaint and ought not to have issued process.