Oral Judgment:

1. Heard learned advocates for the respective parties.

2. RULE. Rule made returnable forthwith.

3. The respondent No.1-Takhatmal Shrivallabh Brothers firm filed Criminal Complaint Case No.4291/2010 praying that the accused be tried and convicted for the offences punishable under Section 138 of the Negotiable Instruments Act, 1881 and Section 420 of the Indian Penal Code.

4. After verification of the complainant and examining the complaint and the documents on record, the learned Magistrate passed order on 15th June, 2011 directing issuance of process against the petitioner-accused for the offence punishable under Section 138 of the Negotiable Instruments Act, 1881.

The petitioner, being aggrieved by the above order filed Criminal Revision No.120 of 2011 before the Sessions Court which is dismissed by the impugned order.

The petitioner, being aggrieved in the matter, has filed this writ petition.

5. I have heard the learned advocates for the respective parties and have examined the documents placed on the record of the petition.

The learned Magistrate has observed that prima-facie it appears that the cheque is issued by the accused to the complainant, the cheque is dishonoured, the complainant had given notice to the accused and the complaint is filed within limitation. After being satisfied that the ingredients necessary for constituting the offence punishable under Section 138 of the Negotiable Instruments Act, 1881 prima-facie exist, the order came to be passed on 15th June, 2011 directing issuance of process against the accused for the offence punishable under Section 138 of the Negotiable Instruments Act.

6. In the revision application, the accused contended that prior to the issuance of cheque for Rs.7,00,000/- there were some settlements between the parties which are relevant and are not considered by the learned Magistrate while passing the order. It was contended that the cheque was not issued for satisfying the legally enforceable debt, but it was issued on behalf of Sharma Brothers and to substantiate this, the complainant had not brought on record all the relevant facts. It was contended that the complaint was not maintainable as Sharma brothers are not impleaded as parties. It was contended that the cheque was presented after six months and therefore, the complaint filed by the respondent No.1 cannot be tried.

7. The learned Additional Sessions Judge has succinctly dealt with the relevant aspects and has recorded that the cheque is dated 29th September, 2010, the memo sent by the Bank shows that the cheque was returned to the complainant on 29th September, 2010 and it cannot be said that the cheque was presented after six months. The learned Additional Sessions Judge has rightly observed that the defence raised by the accused by the averments in the memorandum of revision filed before the Sessions Court were required to be considered by the Magistrate after conducting the trial and recording the evidence.

8. The learned advocate for the petitioner has relied on the judgment given in the case of Harshendra Kumar D. Rebatilata Koley, reported in (2011) 3 SCC 351 [LQ/SC/2011/217] and has submitted that the learned Additional Sessions Judge has failed to consider that if the petitioner succeeds in proving that the accusations made in the complaint and the documents relied upon by the complainant do not make out any offence against the petitioner and if the petitioner succeeds in proving on the basis of the documents placed on record that the offence, as alleged by the complainant, is not made out, the order passed by the learned Magistrate directing issuance of process against the petitioner is required to be quashed.

9. The submissions made on behalf of the petitioner-accused are misdirected. I find that the defence raised by the petitioner will have to be considered only after giving proper opportunity to the parties to substantiate their contentions. The considerations of the learned Magistrate while directing the issuance of process against the petitioner and the reasons recorded by the learned Additional Sessions Judge while dismissing the revision application filed by the petitioner are proper and it cannot be said that the impugned orders suffer from any patent illegality or perversity which necessitates interference by this Court in the extraordinary writ jurisdiction.

The petition is dismissed. In the circumstances, the parties to bear their own costs.