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TMI Blog2009 (9) TMI 1069X X X X Extracts X X X X X X X X Extracts X X X X ..... itions came up before the Court, the learned advocate for the petitioner sought an adjournment. They were adjourned to 6th May, 2009. Again, adjournment was sought. Adjournment was granted, but the stay was vacated, and the learned Metropolitan Magistrate, 43rd Court at Borivali, Mumbai, was directed to expedite the trial. 3. Now, the petitions have again come up for hearing, and we have heard the matters. 4. Respondents No. 2 and 3 have not appeared, though counter-affidavits have been filed on their behalf. We have heard the learned counsel for the petitioner at great detail. The facts in both the petitions are almost similar. For the sake of convenience, we refer to the facts in the first petition, viz., Criminal Writ Petition N ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ong with this petition, including a notice given by respondent No. 2 to the petitioner before the cheque was issued, thereby placing on record circumstances under which, according to him, cheques aggregating Rs.1,50,000/- were issued in favour of respondent No. 2 and the cheque in question for Rs.50,000/- was issued by respondent No. 1. 9. The learned counsel for the petitioner submits that the prosecution was launched with an ulterior motive and with a view to launch an absolutely frivolous prosecution. He further submits that the prosecution was launched out of vendetta against the members of the Akurli Satya Co-operative Housing Society Ltd. The learned counsel, laying emphasis on the documents he has produced, wants to show to thi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ent No. 2 to file the complaint against the Petitioner. The Respondent No. 2 as a mater of fact has been ousted from Akurli Satya Cooperative Housing Society because of the Respondent indulging in misuse defalcation of the funds of the society, running into several crores of rupees. Defalcation / siphoning of society's funds also led to arrest detention of the Respondent No.2 in two cases registered against him by Kurar Village Police Station, being CR Nos. 119/04 122/04. The Petitioner craves leave of this Hon'ble Court to refer to and rely upon the records proceedings concerning these two cases court records, when produced. The petitioner with a view to avoid prolonged and protracted litigation amicably settled the matte ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... debt. This onus can only be discharged by the person who issues the cheque if he proves to the contrary and such a proof cannot be accepted in a proceeding under Article 226 of the Constitution of India. Even if we had to agree with the learned counsel for the petitioner, which we are afraid we cannot, that we could take the documents into consideration, which he has produced in these petitions filed under Article 226 of the Constitution of India, even then, it was not possible for this Court to come to a conclusion that the petitioner has discharged the onus under Section 139 of the Act. 11. The learned counsel for the petitioner has relied on number of judgments before this Court:- (1) S.P. Chengal Varaya Naidu (Dead) by LRs. v. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sion of the parties was also made. This judgment was passed in the peculiar circumstances of the case, and the Court found that the order taking cognizance of the matter was a result of fraud, and, therefore, the prosecution was quashed. There were the affidavits of the lawyers, who appeared for the so-called complainants before the Magistrate, who admitted the contents of the Writ Petition, and in paragraph 7 of the judgment, the Court noted:- From the affidavit filed on behalf of the said lawyers and from the arguments addressed today on their behalf, it is clear that at least as on today they are also in agreement with the writ petitioner that the contents of the complaint are not genuine though they categorically state that the said ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... inst the accused. (2) Where the allegations in the first information report and other materials, if any, accompanying the FIR do not disclose a cognizable offence, justifying an investigation by police officers under Section 156(1) of the Code except under an order of a Magistrate within the purview of Section 155(2) of the Code. (3) Where the uncontroverted allegations made in the FIR or complaint and the evidence collected in support of the same do not disclose the commission of any offence and make out a case against the accused. (4) Where the allegations in the FIR do not constitute a cognizable offence but constitute only a non- cognizable offence, no investigation is permitted by a police officer without an order of a Magistr ..... X X X X Extracts X X X X X X X X Extracts X X X X
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