Dev Plastic Thr. Its Proprietor Smt. Kamla Devkisan Sarda And Others v. Jaywanti @ Jaya Ashok Jaju

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IN THE HIGH COURT OF JUDICATURE AT BOMBAY

NAGPUR BENCH, NAGPUR CRIMINAL APPLICATION [APL] NO.

OF 2022 Applicants :

1. Dev Plastics, Through its Proprietor Smt. Kamla Devkisan Sarda, Aged about 73 years, Occupation : Business, R/o Plot No.A-3/2, MIDC, Murtizapur, District Akola.

2. Smt. Kamla Devkisan Sarda, Aged about 73 years, Occupation : Business.

3. Sushil s/o Devkisan Sarda, Aged about 48 years, Occupation : Business.

Nos.2 & 3, R/o. Sarda Compound, Karanja Road, Murtizapur, District Akola.

- Versus - Non-Applicant :

Jaywanti @ Jaya Ashok Jaju, Aged about 55 years, Occupation : Housewife, R/o. 213/8, Lane No.2, Near Chittalwar's Bungalow, Geeta Nagar, Akola, Tah. & District Akola.

=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-= Mr. N.R. Tekade, Advocate for the Applicants Mr. S.A. Mohta, Advocate for the Non-Applicant. =-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=

CORAM

:

VINAY JOSHI, J .

DATE :

th SEPTEMBER, 2022.

ORAL

JUDGMENT

:- Admit. Heard finally by consent of both the learned Counsel appearing for the parties.

2/3 02] The applicants are the accused in SCC No.3487/2021, which is in relation to Section 138 of the Negotiable Instruments Act (hereinafter referred to as the 'Act' for short). The applicants challenged the maintainability of the proceedings on account that the trial Court has not conducted necessary enquiry in terms of Section 202 of the Code of Criminal Procedure (Code) since the accused are residing out of the territorial jurisdiction of the trial Court. The other side objected the challenge by placing reliance on the decision of the Supreme Court in Suo Motu Writ Petition (Cri.) No.2/2020, reported in AIR 2021 SC 1957, which has concluded the issue by expressing that though the enquiry under Section 202 of the Code is mandatory, however, filing of affidavit would suffice the purpose.

03] Perusal of the impugned order dated 28/09/2021 discloses that the learned Magistrate has considered the affidavit of the complainant along with other material while taking cognizance. Though the applicants would submit that the affidavit does not specify the constitution of offence, however, having regard to the scope of enquiry under Section 202 of the Code, the said contention cannot be accepted at this preliminary stage. It is evident that the complainant has filed affidavit in term of Section 145 of the Act and thus the requisite compliance has been made.

3/3 04] In view of that, the challenge is untenable. Hence, the application is dismissed.

(VINAY JOSHI, J.) *sandesh Signed by:SANDESH DAULATRAO WAGHMARE Private Secretary to the Hon'ble Judge