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TMI Blog2019 (8) TMI 946X X X X Extracts X X X X X X X X Extracts X X X X ..... a G Maurya i/by Karmarkar Associates for the Petitioner. Ms. Sheetal Goad for Respondent No.1 Mr. A R Patil, APP, for the Respondent/State. JUDGMENT 1. Rule, with the consent of the learned counsel for the parties made returnable and heard forthwith. 2. The above Writ Petition takes an exception to the order dated 23/02/2018 passed by the learned Metropolitan Magistrate, 43rd Court at Borivali, Mumbai in C.C. No.2802/SS/2016 thereby issuing the process against the Petitioner and Co-accused No.1. 3. The facts giving rise for filing of the present Writ Petition, can in brief be stated thus :- Respondent No.1 herein is the original Complainant who is a practicing advocate and is a partner in a solicitor firm in Mumbai known as SRM Law Associates. The Petitioner is the original accused No.2 and, wife of original Accused No.1 Mr. Khandu Kacharu Avhad. It is the case of Respondent No.1 Complainant that both the accused, who are husband and wife, approached to the Complainant through one of his client Mr. Nitul Unadkani in a legal matter with Mr. Chetan Desai. It is the contention of the complainant that from Jun 20 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r./w 141 of the Negotiable Instruments Act, and accordingly by order dated 23/02/2018 directed to issue process against both the accused for the offence punishable under Section 138 r/w 141 of the Negotiable Instruments Act. It is the said order which is taken exception to by way of the above Writ Petition. 5. Heard the learned counsel appearing for the respective parties. With their able assistance I have perused the pleadings, grounds taken in the Petition, and annexure thereto and the affidavit in reply of Respondent No.1 herein, as also the reasons assigned by the trial court in the impugned order dated 23/02/2018. 6. The learned counsel for the Petitioner submits that the husband of the Petitioner Mr. Khandu K Avhad, who is original accused No.1 in the complaint, had appointed Respondent No.1 herein as an advocate to act, appear and plead for him in the litigation. It is also submitted that Respondent No.1 has taken accused No.1 in confidence and made him to issue blank cheque to Respondent No.1. The husband of the Petitioner has timely paid Respondent No.1 his litigation fees. 7. According to the Petitioner and her husband, Respondent No.1 was not ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... accused Nos.1 and 2, and Mr. Nitu Unadkant during the said period. It is also submitted that towards discharging the said legal liability, the accused handed over cheque dated 15th March, 2016 bearing No.227050 drawn on union Bank of india of ₹ 8,62,000/- and when the said cheque was presented for encashment, the same was returned unpaid with endorsement funds insufficient . It is submitted that though a demand notice has been served upon the accused, the accused neither replied the said notice nor made the payment of the aforesaid dishonoured cheque. It is also submitted that the learned Magistrate therefore has rightly came to a conclusion that prima facie case has been made out against both the accused for the offence under Section 138 of the Negotiable Instruments Act, and therefore the order of issuing process needs no interference. The learned counsel for Respondent No.1/Complainant submits that this Petition is not maintainable since it is preferred against order passed by the learned Magistrate issuing summons against the accused, as the Petitioner did not availe the remedy before the revisional court and has directly approached this Court praying to stay the trial ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... affidavit in reply that since the bailable warrant was issued by the trial court against the Petitioner, the Petitioner appeared before the trial court on 06th February 2019 to obtain the bail and his plea was recorded. But during recording of plea, there was no defence raised by the Petitioner before the trial Court to prove her innocence. She did not raise any objection or defence which clearly suggests legally enforceable liability of the Petitioner towards Respondent No.1. It is also stated in the said affidavit in reply that the Petitioner and her husband have approach Respondent No.1 to defend them in the civil suits Nos.399/2015 and 400/2015 before the City Civil Court, Mumbai. It is also stated that Respondent No.1 was informed by the husband of the Petitioner that the Petitioner is not medically fit thus the husband of the Petitioner will be coordinating with Respondent No.1. It is also stated that Respondent No.1 has at all times and at every date attended the matter and have sent the emails. The Respondent No.1 stated that since the Petitioner was medically unfit, her husband has issued the cheque on her behalf to fulfill her legal obligation and therefore there is a joi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... usband at the relevant time. 11. Respondent No.1 herein lodged a complaint before the learned Magistrate for offence punishable under Section 138 of the Negotiable Instruments against the present Petitioner and her husband. In support of the said complaint, Respondent No.1 has filed verification, emails exchanged between him and the Petitioner and her husband and the said Mr. Nitul Bhai, as also the professional bill raised by Respondent No.1 for the legal charges, and demand notice before the Trial Court. The Trial Court has came to a conclusion that prima facie case has been made out against both the accused for an offence punishable under Section 138 r/w 141 of the Negotiable Instruments Act and therefore issued process against both the accused. The contention of the Petitioner that Respondent No.1, with malafide intention, has filed the complaint against the Petitioner and her husband, and without applying his mind the complainant has made Petitioner as co-accused, can be considered and decided only during trial after giving opportunity to the parties to lead evidence in that regard. It is an undisputed fact that the cheque issued by the husband of the Petitioner was d ..... X X X X Extracts X X X X X X X X Extracts X X X X
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