TMI Blog2023 (5) TMI 799X X X X Extracts X X X X X X X X Extracts X X X X ..... the court is satisfied that the ingredients of section 138 are fulfilled, the learned Magistrate is entitled to issue process. Legally recoverable liability or not - submission is that initial loan was Rs. 1,50,00,000/- and the cheques issued which are subject matter of two complaints are of Rs. 1,61,48,178/- and Rs. 1,56,07,312/-, demonstrate that there is no legally recoverable liability - HELD THAT:- The said submission is in ignorance of paragraph 7 of the complaint which states that in addition to Rs. 1,50,00,000/-, amount of Rs. 50,00,000/- was sanctioned to the complainant. The factum as to whether the total amount of cheque is legally recoverable or not is purely question of facts. At the stage of issuance of process, unless th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ng the same transaction or not - HELD THAT:- The statement made in paragraph 14 is inconsequential and has no relevance on merits of the matter and, therefore, even if such statement is incorrect, it will be of no consequence and does not affect the validity of order of issuance of process. Petition dismissed. - WRIT PETITION NO.1482 OF 2023 - - - Dated:- 25-4-2023 - AMIT BORKAR, J. For the Petitioners : Mr. Adithya Iyer with Mr. Jayesh Bhosale with Mr. Advait Helekar Manuj Borkar Nyayosh Bharucha. For the Respondent No. 1/State : Mr. M.G. Patil, APP. For the Respondent No. 2: Mr. Nikhil Rajani with Adv. Snepy Ambawat i/by M/s. U. Deshpande Co. P.C.: 1. Challenge in this petition is to the order d ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... earned Magistrate issued process against the petitioners for offence under section 138 read with section 141 of the Negotiable Instruments Act, 1881. Challenge to the said order is made by present petition. 4. Learned advocate for the petitioners submitted that based on same transaction and one agreement, the complainant has filed two complaints for dishonour of two different cheques. Paragraph Nos. 2 to 7 of both the complaints are identical. Since both the complaints arise out of identical transaction, the complaints are not maintainable. 5. I have considered the submissions made on behalf of the petitioners. No provision of law or any precedent is pointed out in support of his submission that filing of complaint based on one agreem ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t in the case of Sunil Todi and Others vs. State of Gujrat and Another reported in (2021) SCC OnLine SC 1174, paragraph 46 reads as under. 46. Section 145 of the NI Act provides that evidence of the complainant may be given by him on affidavit, which shall be read in evidence in an inquiry, trial or other proceeding notwithstanding anything contained in the CrPC. The Constitution Bench held that Section 145 has been inserted in the Act, with effect from 2003 with the laudable object of speeding up trials in complaints filed under Section 138. Hence, the Court noted that if the evidence of the complainant may be given by him on affidavit, there is no reason for insisting on the evidence of the witnesses to be taken on oath. Co ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... a future date and, thereafter, considering the complaint and affidavit of verification has held inquiry under section 202 and has passed impugned order. Hence, the ground of not holding inquiry under section 202 is not available to the petitioners. 10. The third contention raised on behalf on the petitioners is that the complaint with the Magistrate had no territorial jurisdiction to entertain complaint. It is submitted that one complaint is filed in the Court at Ballard Pier and second complaint is filed before at the Esplanade Court. The territorial jurisdiction of the learned Magistrate is decided as per section 142A of the Negotiable Instruments Act, 1881. It is the branch of payee bank which confers jurisdiction on the Court. Theref ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
