PRDEEP BALMUKUND AGARWAL Vs. SONALI J SHAH

JUDGEMENT

(1.) Heard. The petitioner challenges the order passed by the learned Additional Sessions Judge in a Criminal Revision Application whereby the said revision application has been dismissed while confirming the order of the magistrate issuing the process against the petitioner without considering the defence of the petitioner to the effect that the cheques were obtained by the complainant in duress and by playing fraud. It is the case of the petitioner that the respondents filed a complaint under section 138 of Negotiable Instrument Act, 1938 for recovery of the amount in relation to the cheques alleged to have been dishonoured by the bank when the same were presented for encashment. It is the contention of the petitioner that the said cheques were obtained by the complainant with the help of police machinery under duress and coercion and also by playing fraud, and therefore, there was no legal liability upon the petitioner to honour the said cheque and to pay the amount in terms of the said cheque, and therefore, the learned Magistrate could not have exercised jurisdiction for issuance of process on the basis of alleged dishonour of such cheque.

(2.) In the impugned judgment, the learned Additional Sessions Judge has clearly observed that the ground on which the petitioner wanted the revisional Court to interfere in the order of issuance of process related to the disputed questions of fact and being so the petitioner was free to agitate the same in defence in the course of trial, and it was not possible to interfere in the order of issuance of process in revisional jurisdiction on such ground. The law is well settled as regards the jurisdiction of the revisional Court. The revisional Court can exercise such jurisdiction in relation to the jurisdictional error and not in relation to the dispute which related to the disputed questions of fact. In the matter in hand, as rightly observed by the learned Additional sessions Judge, since the challenge to the issuance of process is on the ground that the cheque which was the subject-matter of the complaint was allegedly obtained by playing fraud, it is necessary for the petitioner to establish the said contention by adducing necessary evidence either by himself or through the witnesses of the complainant. However, the question about the legality or illegality of issuance of process cannot be decided in revisional jurisdiction on the basis of such allegation by the petitioner. Whether the cheque was obtained by playing fraud or not is not a pure question of law but it would necessarily require evidence to be placed on record to establish the said allegation made by the petitioner. In the absence of any such proof, it is too premature for any Court to deal with such allegation. Once a document disclosing the liability of the party is produced and the said document is in the form of negotiable instrument i. e. the cheque in terms of the provisions of the. Negotiable Instrument act, preliminary requirement having been complied with, the party is not forbidden from initiating the necessary proceedings under the provisions of section 138 of the negotiable Instrument Act. Considering the same, no fault could have been found with the order of the learned Magistrate issuing the process and for the same reason, no fault could be found with the order of the learned Additional Sessions Judge rejecting the revision application.