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Attorney(S)
  • Shirish Gupte, Senior Counsel along with Mubin Solkar and Miss Nikita Ajwani along with Ms. Cynthia Pereira instructed by Rajani Associates
  • Amit Desai, Senior Counsel instructed by Jatin Shah
  • For State: S.A Shaikh, APP
Judges
  • V.M Kanade, J.
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Citation Codes
Equivalent Citations
citation codes
Case Number
Attorney(S)
  • Shirish Gupte, Senior Counsel along with Mubin Solkar and Miss Nikita Ajwani along with Ms. Cynthia Pereira instructed by Rajani Associates
  • Amit Desai, Senior Counsel instructed by Jatin Shah
  • For State: S.A Shaikh, APP
Judges
  • V.M Kanade, J.
Acts
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Smart Summary

Structured Summary of the Opinion

Factual and Procedural Background

The petitioners (a company and several of its officers) challenged an order of issuance of process passed by the Learned Metropolitan Magistrate, 23rd Court at Esplanade, Mumbai. The respondent (a bank/complainant company) filed a complaint against the petitioners for an offence under section 138 read with section 141 of the Negotiable Instruments Act. The complaint alleged that the petitioners had obtained working capital/cash credit facilities, failed to repay the outstanding amounts despite extensions, and issued an "At Par" cheque dated 31-12-2008 for Rs. 35,00,00,000/-, which was deposited and subsequently dishonoured with the endorsement "funds insufficient". A notice was sent and then a private complaint filed; the learned Magistrate, after recording verification, issued process.

The petition is filed under section 227 of the Constitution of India and under section 482 of the Criminal Procedure Code to challenge the Magistrate's order. Key procedural events noted in the opinion include: plea recorded on 18-9-2009 and an affidavit (in lieu of Examination-in-Chief) filed by the complainant's representative on 22-12-2009.

Legal Issues Presented

  1. Whether the Learned Metropolitan Magistrate erred in issuing process without conducting the statutory enquiry envisaged by section 202 Cr.P.C.
  2. Whether there was any legally enforceable debt or liability on the date of issuance/deposit of the cheque (i.e., whether ingredients of section 138 N.I. Act were satisfied on the relevant date).
  3. Whether the Court at Mumbai had territorial jurisdiction to try the complaint.
  4. Whether the High Court should exercise its inherent jurisdiction under section 482 Cr.P.C. (and writ jurisdiction under section 227 of the Constitution) to quash the Magistrate's order after plea was recorded and affidavit/evidence proceedings had commenced.

Arguments of the Parties

Petitioners' Arguments (as presented in the opinion)

  • The Learned Magistrate did not conduct the statutory enquiry required under section 202 Cr.P.C. and proceeded to issue process without holding that enquiry.
  • There was no legally enforceable debt or liability on the date of issuance/deposit of the cheque because the overdraft/credit facility had been extended/renewed (claimed extension to 31st January, 2009) and therefore no amount was due and payable when the cheque was deposited.
  • The Court in Mumbai lacked territorial jurisdiction to try the criminal complaint because the petitioners' company was based in Chennai, overdraft facilities were availed through the Chennai branch, and no part of the cause of action arose in Mumbai; the cheque was initially deposited at Chennai and later redeposited in Mumbai allegedly to harass the petitioners.
  • Reliance was placed on several authorities (including Harman Electronics (P) Ltd. v. National Panasonic (India) Ltd., Dipti Kumar Mohanty v. Videocon Industries Ltd., Ahuja Nandkishore Dongre v. State of Maharashtra, and Suralakshmi Cotton Mills Ltd. v. Rajvir Industries Ltd.) to support their contentions on jurisdiction and other issues.

Complainant/Respondent's Arguments (as presented in the opinion)

  • The High Court should rarely interfere with an order of issuance of process and should not ordinarily exercise its inherent jurisdiction after plea has been recorded and evidence recording has commenced; interference is justified only in rarest of rare cases. To this end several authorities were cited (e.g., Subramanium Sethuraman v. State of Maharashtra; Nikumbh Dairy Products Ltd. v. State of Maharashtra; Bharat Parikh v. C.B.I.; Ratilal Bhanji Mithani v. State of Maharashtra; Nandkishor R. Lohiya v. State of Maharashtra).
  • The question of existence of debt or liability is a matter for trial and cannot be decided at the stage of an application under section 482 Cr.P.C., especially in view of the statutory presumptions under sections 118 and 139 of the Negotiable Instruments Act.
  • On territorial jurisdiction, the drawee bank and registered office of the complainant were within the territorial jurisdiction of the Mumbai Court; the notice was issued from Mumbai and the facilities were sanctioned from Mumbai; the cheque was an "At Par" cheque and therefore deposit at any branch (including Mumbai) was valid—therefore Mumbai Court has jurisdiction. Supporting authorities were cited for territorial jurisdiction propositions (including Bansilal S. Kabra v. Global Trade Finance Ltd.; Sharad Jhunjhunwala v. Compuage Infocom Ltd.; Preetha Babu v. Voltas Ltd.; Jinraj Paper Udyog v. Dinesh Associates; Hemlata R. Pendharkar v. Jaswantsingh R. Sonawane; Yashomala Engineering v. Tata SSI Ltd.; K. Bhaskaran v. S. Balan; Samshad Begum v. B. Mohammed).
  • The respondent relied on the presumption arising under sections 118 and 139 N.I. Act and referred to State Farming Corp. of India Ltd. v. Nijjer Agro Foods to support the position that the existence of liability should be left to trial.

Table of Precedents Cited

Precedent Rule or Principle Cited For Application by the Court
Harman Electronics (P) Ltd. v. National Panasonic (India) Ltd. (Apex Court) Relied upon by petitioners (the opinion does not set out a specific principle from this judgment in the text). The opinion records that petitioners relied on this authority; the court considered the reliance but did not treat it as a ground to interfere with the issuance of process.
Dipti Kumar Mohanty v. Videocon Industries Ltd. Relied upon by petitioners (no specific rule extracted in the opinion text). Noted as relied upon by petitioners; not held to justify quashing the process.
Ahuja Nandkishore Dongre v. State of Maharashtra Relied upon (cited by both parties in different contexts as authority on territorial/other aspects in N.I. Act matters). Referenced in the discussion on jurisdiction; the court treated the authority as supporting the proposition that Mumbai could have jurisdiction in appropriate circumstances.
Suralakshmi Cotton Mills Ltd. v. Rajvir Industries Ltd. (AIR 2008 SC 1683) Relied upon by petitioners (opinion does not specify the exact proposition from the case). The court noted the reliance but did not find it sufficient to quash the Magistrate's order.
Subramanium Sethuraman v. State of Maharashtra Principle: High Court should not ordinarily interfere with issuance of process after plea is recorded and evidence recording has commenced. The court relied on this principle to hold that interference was unwarranted because plea had been recorded and affidavit for examination-in-chief filed.
Nikumbh Dairy Products Ltd. v. State of Maharashtra Relied upon for the limited scope of High Court interference (referenced in para 8). Used as part of the body of authorities supporting non-interference after commencement of trial proceedings; supported dismissal of petition.
Bharat Parikh v. C.B.I. Relied upon for the proposition that High Court ordinarily should not interfere after plea/evidence stage (as cited by respondent). Included among authorities reinforcing the court's conclusion not to interfere.
Ratilal Bhanji Mithani v. State of Maharashtra (1979) 2 SCC 179 : AIR 1979 SC 94 Relied upon for the proposition that High Court should not interfere in inherent jurisdiction in certain circumstances. Adopted as part of the precedent-base for declining to quash the Magistrate's order.
Nandkishor R. Lohiya v. State of Maharashtra Relied upon for non-interference principles (paras cited in the opinion). Considered among authorities that weigh against interference by the High Court at this stage.
Bansilal S. Kabra v. Global Trade Finance Ltd. Held (per the opinion) that provisions of section 202 Cr.P.C. are directory and not mandatory. The court relied on this decision to conclude that failure to conduct a section 202 enquiry did not automatically require quashing or staying proceedings; the reference to a Full Bench/Division Bench on the point did not mandate a stay of all pending cases.
Sharad Jhunjhunwala v. Compuage Infocom Ltd. Relied upon by respondent on territorial jurisdiction issues (para cited). Formed part of the authorities the court considered in concluding Mumbai Court could have jurisdiction.
Preetha Babu v. Voltas Ltd. Relied upon for territorial jurisdiction propositions (cited by respondent and relied upon by Court). Cited by the court as supportive authority for the proposition that Mumbai could have jurisdiction in the facts of this case.
Jinraj Paper Udyog v. Dinesh Associates & Anr. Relied upon by respondent on territorial jurisdiction (para 52(6) referenced). Used among several High Court decisions supporting territorial jurisdiction in cheque cases.
Hemlata R. Pendharkar v. Jaswantsingh R. Sonawane Relied upon by respondent on territorial jurisdiction (paras cited). Considered as one of the authorities underpinning the court's jurisdictional conclusion.
Yashomala Engineering v. Tata SSI Ltd. Relied upon for territorial jurisdiction (para cited). Included in the body of case-law supporting the court's view on jurisdiction.
K. Bhaskaran v. S. Balan (1999 (4) ALL MR 452) Authority cited on territorial jurisdiction in cheque bounce matters (paras 14–16 referenced). The court relied on this Apex Court authority to support its conclusion that Mumbai Court had jurisdiction to try the complaint.
Samshad Begum v. B. Mohammed Relied upon in the context of territorial jurisdiction (paras cited). Cited by the court among Apex Court precedents supporting jurisdictional propositions.
State Farming Corp. of India Ltd. v. Nijjer Agro Foods Relied upon by respondent in relation to the presumption under sections 118 and 139 of the Negotiable Instruments Act. The court referenced the presumption in sections 118/139 and indicated that the existence of debt/liability is to be determined at trial; the cited authority supported this approach.
Other judgments expressly cited by the parties in support of various points (e.g., unreported Bombay High Court judgment dated 3 February 2010 in Application No. 3158 of 2010) The opinion records citation/reliance but does not always extract a single articulated rule in each instance. These judgments were part of the authorities considered by the court; where specific principles were identified (see rows above), they were applied accordingly.

Court's Reasoning and Analysis

The court addressed the contested points sequentially and limited its inquiry to the material and law as presented in the opinion:

  1. Non-interference after plea/evidence commencement: The court observed that the plea had been recorded on 18-9-2009 and the complainant's affidavit in lieu of Examination-in-Chief had been filed on 22-12-2009. Relying on Apex Court and High Court authorities (for example Subramanium Sethuraman; Nikumbh Dairy; Ratilal Bhanji Mithani; Nandkishor Rampal Lohiya), the court noted the settled position that the High Court should not ordinarily interfere under its inherent jurisdiction after plea is recorded and evidence recording has commenced. On this basis alone, the court found it was not appropriate to quash the order issuing process.
  2. Existence of debt or liability: The petitioners urged that the account/facility had been extended to 31st January, 2009 (relying on a document/affidavit). The court emphasized the statutory presumptions under sections 118 and 139 of the Negotiable Instruments Act and stated that the question of existence of debt or liability is to be decided at trial. The court observed the complainant disputed the alleged extension and held that such disputed factual questions could not be decided at the stage of a section 482 petition.
  3. Territorial jurisdiction: The court examined the facts noted in the complaint and submissions. It observed that the cheque was an "At Par" cheque (payable at branches), the complainant's registered office was in Mumbai, the notice was issued from Mumbai, and the credit facilities were sanctioned from Mumbai. Relying on authorities such as K. Bhaskaran v. S. Balan, Preetha Babu v. Voltas Ltd., and Samshad Begum v. B. Mohammed among others, the court concluded that the Mumbai Court would have jurisdiction to try and decide the case.
  4. Section 202 Cr.P.C. enquiry: The petitioners contended there was no section 202 enquiry. The court referred to a decision (Bansilal S. Kabra) holding section 202 to be directory and not mandatory. The court noted there were differing views at the Single Judge level, but emphasized that mere reference of the issue to a larger bench does not automatically require staying or quashing proceedings in every case. The court therefore did not accept the contention that the absence of a section 202 enquiry mandated interference.
  5. Overall conclusion: Since plea had been recorded and evidence had been commenced and material factual disputes (such as extension of facility and existence of liability) remained for trial, and because the court found sufficient jurisdictional and procedural grounds to proceed, it declined to interfere with the Magistrate's order issuing process.

Holding and Implications

Holding: The writ petition challenging the order issuing process was dismissed. The opinion concludes with the order: "Petition dismissed."

Implications:

  • Direct effect: The order of the Learned Metropolitan Magistrate issuing process in the complaint under section 138 r/w section 141 of the Negotiable Instruments Act remains in force; the criminal proceedings may continue in the Magistrate's court.
  • On broader precedent: The court applied existing authorities to decline to exercise its inherent jurisdiction at this stage; the opinion does not purport to lay down any new legal principle or novel precedent beyond applying settled case law on non-interference after the plea and the scope of section 202 Cr.P.C. as discussed.

This summary is strictly confined to and based upon the material contained in the provided opinion. No information beyond the opinion text has been added or inferred.

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    Subhiksha Trading Services Ltd., Chennai And Others v. Kotak Mahindra Bank Ltd., Mumbai And Another

    1. By this petition, which is filed under section 227 of the Constitution of India and under section 482 of the Criminal Procedure Code, the petitioners are challenging the order of issuance of process passed by the Learned Metropolitan Magistrate, 23rd Court at Esplanade, Mumbai.

    2. Brief fact are as under:—

    The petitioner No. 1 is a company incorporated under the provisions of the Companies Act, 1956, having its registered office at Chennai. The petitioner No. 2 is the Managing Director and the petitioner No. 3 is the authorized signatory of the petitioner No. 1 and the petitioner No. 4 is the General Manager - Finance and also the authorized signatory of petitioner No. I. The petitioner No. 1 is a banking company within the meaning of the Banking Company and Regulation Act, 1949, having its registered office at Mumbai.

    3. A complaint was filed by the respondent No. 1 against the petitioners for the offence punishable under section 138 r/w. 141 of the Negotiable Instruments Act, wherein it was alleged that the accused No. 1 had approached the Complainant Company for sanctioning the working capital and cash credit facility. It is alleged that the discussions were held in the registered office of the Complainant at Mumbai and the facilities were approved and sanctioned by the Complainant from its office at Mumbai. The petitioners herein had undertaken to abide the terms and conditions of the facilities and repay the dues within the stipulated period. The application, therefore, filed by the petitioners were sanctioned by the Complainant Company on 13th December, 2006. A resolution to that effect was passed by the Board of Directors of the petitioner No. 1. Thereafter, the accused had failed to repay the outstanding amount to the Complainant, though they had agreed, to repay the amount by 31st September, 2008 and further extended to 31st January, 2009. Thereafter, negotiations were held with the Complainant and the accused No. 1 vide its letter dated 30-9-2008 forwarded to the Complainant Company “At Par” cheque dated 31-12-2008 for a sum of Rs. 35,00,00,000/-. This cheque was deposited initially by the Complainant Company in its bank account maintained with HDFC Bank, Fort Branch, Mumbai. However, the cheque was returned “dishonoured” with a bank memo dated 21-1-2009 with a endorsement “funds insufficient”. A notice was sent to the Accused and, thereafter, a private complaint was filed. The learned Magistrate after recording the verification, issued the process.

    4. Shri Gupte, the Learned Senior Counsel appearing on behalf of the petitioners submitted that the Learned Magistrate had not conducted the statutory enquiry, contemplated under section 202 of the Criminal Procedure Code. The learned Magistrate has proceeded to issue process against petitioners without holding a statutory enquiry as envisaged in section 202 of the Criminal Procedure Code. Secondly, it was submitted that there was no legally enforceable debt or liability on the date of issuance of the cheque. Thirdly, it was submitted that the Court in Mumbai would not have jurisdiction to try and entertain the complaint.

    5. So far as the question of enquiry under section 202 of the Criminal Procedure Code is concerned, it was submitted that the said issue had been referred to the larger bench by an order dated 9th July, 2010 and further order dated 29th July, 2010 and, therefore, till the issue was finally resolved by the Division Bench or Larger Bench of this Court, the proceedings should be stayed.

    5A. So far as the question of jurisdiction of the Mumbai Court to try and decide the criminal complaint is concerned, it was urged that the petitioners Company is at Chennai. Secondly, it was submitted that overdraft facilities from respondent Bank were availed through the branch of the respondent Bank at Chennai. It was further submitted that since the facilities were in the nature of overdraft, the same were to be repaid only on recall by the respondent Bank, or on non-renewal of the facilities by the respondent Bank.

    6. Shri Gupte, the learned Senior Counsel appearing on behalf of the petitioners relied on an affidavit filed by the respondent in a proceeding in the Chennai Court. Wherein in one of the annexures to the said affidavit, it was clearly stated that the said overdraft facilities were extended till 31st January, 2009. It was submitted that this extension was granted on 15th November, 2008 and, therefore, on 19th January, 2009 and when the cheque was deposited by the respondent, there was no existing debt or liability and since the facilities were renewed to 31st January, 2009, no arrangement had been made by the petitioner honouring cheques in any manner as the facility was still subsisting. It was submitted that recall of the facility was made by a notice issued by the Complainant in February, 2009. It was, therefore, submitted that there was no amount due and payable till 31st January, 2009, yet the respondent Bank deposited the cheque on 6th January, 2009 at Chennai and then again at Mumbai on 19th January, 2009. It was further submitted that the Mumbai Court did not have jurisdiction to decide the case since no part of the cause of action had arised in Mumbai. It was submitted that the complaint under section 138 of the n.i act could be filed only where the transactions had been conducted and the jurisdiction of the Court could not be usurped by depositing the cheque or issuing notice from a particular place where no part of the transaction had taken place. It was submitted that initially the cheque was deposited in Chennai and thereafter, it was again deposited in Mumbai. It was submitted that the Complainant was aware that the cheque could be deposited only at Chennai. It was further submitted that the cheque was redeposited in Mumbai only with a view to harass the petitioners. The learned Senior Counsel appearing on behalf of the petitioners has relied on a judgment of the Apex Court in the case of Harman Electronics (P) Ltd. v. National Panasonic (India) Ltd. reported in 2009 (3) Mh.L.J (S.C) 792 : 2009 (1) All MR 479. He also relied to the judgment of the Bombay High Court in the case of Dipti Kumar Mohanty v. Videocon Industries Ltd., reported in 2009 (5) Mh.L.J 273 : 2009 (3) Mh.L.J (Cri.) 331 : 2009 Cri.LJ 3220. He then relied on a judgment of the Bombay High Court in Ahuja Nandkishore Dongre v. State of Maharashtra, reported in 2007 Cri.LJ 115 and lastly, on a judgment of the Apex Court in Suralakshmi Cotton Mills Limited v. Rajvir Industries Ltd., reported in AIR 2008 SC 1683.

    7. On the other hand, Shri Amit Desai, the learned Senior Counsel appearing on behalf of the Complainant submitted that the High Court was expected to interfere with the order of issuance of process under section 262 only in rarest of rare case and more particularly in cases where plea has been record the High Court ordinarily should not interfere under its inherent jurisdiction. It was submitted that the charge had been explained to the accused and the plea of the petitioners had been recorded on 18-9-2009. Affidavit in lieu of Examination-in-Chief of the respondent No. 1 Company's representative had been filed on 22-12-2009. In support of the said submission, he relied on the following judgments.

    1. Subramanium Sethuraman v. State of Maharashtra, 2005 (1) Mh.L.J (SC) 626 (para 16), 2. Nikumbh Dairy Products Ltd.…Applicant; v. State Of Maharashtra…. (para 9), 3. Bharat Parikh v. C.B.I, 2009 (1) Mh.LJ (Cri) (SC) 251, (Paras 2, 15 and 16), 4. Ratilal Bhanji Mithani v. State of Maharashtra (para 27), 5. Nandkishor R. Lohiya v. State of Maharashtra (para 19)

    It was secondly, submitted that the existence of debt or liability could be decided only at the time of trial. It was submitted that the petitioners had relied on a stray line in a document i.e Willful Default Assessment Note (WDAN). It was submitted that this document does not form part of the record before the Magistrate. It was further submitted that the said document has to be read as a whole and perusal of the entire document, will show that there was a liability, existed on the relevant date and that the petitioners were willful defaulters. It was submitted that this disputed question could not be gone into at this stage. It was further submitted that in view of the presumption under section 118 and 139 of the Negotiable Instruments Act, this issue could not be decided at this stage. He relied on a judgment of the Apex Court in the case of State Farming Corp. of India Ltd. v. Nijjer Agro Foods (paras 2 and 4). On the question of territorial jurisdiction, he relied on the following judgments.

    1. Bansilal S. Kabra v. Global Trade Finance Ltd., (para 4), 2. Sharad Jhunjhunwala v. Compuage Infocom Ltd. (para 8), 3. Preetha Babu v. Voltas Ltd. (para 7), 4. Jinraj Paper Udyog…Applicant; v. Dinesh Associates & Anr.… (para 52(6), 5. Hemlata R. Pendharkar v. Jaswantsingh R. Sonawane (paras 2, 3 and 20), 6. Yashomala Engineering v. Tata SSI Ltd., (para 16).

    He also relied on the following judgments of the Aped Court on the said aspect.

    1. K. Bhaskaran v. S. Balan, 2000 (1) Mh.L.J (SC) 193, (paras 14–16),

    2. Samshad Begum v. B. Mohammed (paras 6–8), 3. Preetha Babu v. Voltas Ltd. (paras 7)

    Unreported Judgment dated 3rd February, 2010 in Application No. 3158 of 2010.

    It was submitted that the drawee bank was situated within the territorial jurisdiction of the Court. It was further submitted that the registered office of the respondent was situated within the territorial jurisdiction of the Court, the Notice was also issued from Mumbai and further the facilities were sanctioned from Mumbai, the dishonour was also at Mumbai and hence the Court at Mumbai has territorial Jurisdiction. It was further submitted that the petitioners had issued ‘At par’ cheque, which is payable at all branches of its pankers across India and, therefore, all branches of the Drawee Bank act as an agent of such Drawee Bank. The learned Senior Counsel has also relied on a judgment of the Apex Court in the case of Ahuja Nandkishore Dongre v. State of Maharashtra, reported in 2006 ALL M.R (Cri.) 3357.

    8. After having heard both the Counsel at length, in my view, no case is made out for interfering with the order of issuance of process. Firstly, in the present case, plea has already been recorded on 18-9-2009, affidavit by way of Examination-in-Chief of the respondent No. 1 Company's representative has been filed on 22-12-2009. The Apex Court, in the case of Subramanium Sethuraman v. State of Maharashtra, (para 16, Nikumbh Dairy Products Ltd.…Applicant; v. State Of Maharashtra…. (para 9) and in respect of prosecution under other sections in the case of Ratilal Bhartji Mithani v. State of Maharashtra, reported in (1979) 2 SCC 179 : AIR 1979 SC 94 and in the case of Nandkishor Rampal Lohiya v. State of Maharashtra, reported in 2001 Cri. L.J 2742 has held that the High Court should not ordinarily interfere in its inherent jurisdiction after the plea is recorded and the recording of evidence has commenced. On this ground alone, in my view, it will not be possible to interfere with the order of issuance of process. However, since both the parties argued the matters on these points at length, it is necessary to briefly consider the submissions made by the learned Senior Counsel for the petitioners.

    9. So far as question of existence of debt or liability is concerned, it is quite well settled that this issue has to be decided only during the trial and cannot be decided earlier in view of the presumption under sections 118 and 139 of the Negotiable Instruments Act. Though reliance is placed on one of the documents to show that the credit facility was extended till 31st January, 2009. This fact has been disputed by the Complainant and, therefore, it cannot be gone into by this Court under section 482 of the Criminal Procedure Code. On the question of territorial jurisdiction also, the cheque which was issued was “At Par” cheque and, as such, could be deposited at any of the branches of the drawee bank and, therefore, the Complainant was informed to deposit the same in Mumbai Branch because it being a “At Par” cheque. Secondly, the registered office of the Complainant is at Mumbai, the notice was issued from Mumbai and further the credit facilities were also sanctioned from Mumbai and, therefore, in view of the judgment of the Apex Court in the case of K. Bhaskaran v. Sankaran Vaidhyan Balan, reported in 2000 (1) Mh.L.J (SC) 193 : 1999 (4) ALL MR 452 and also the judgment of the Division Bench of this Court in the case of Preetha Babu v. Voltas Ltd., the judgment of the Bombay High Court dated 3rd February, 2010 in Criminal Application No. 3158 of 2010 [2010 (3) Mh.LJ 234 : 2010 (1) Mh.LJ (Cri.) 482] and judgment of the Apex Court in Samshad Begum v. B. Mohammed, reported in AIR 2009 SC 1355, the Bombay Court, therefore, will have jurisdiction to try and decide the case. Lastly, it was argued that the provisions of section 202 of the Criminal Procedure Code have not been applied to the present case. This Court in the case of Bansilal S. Kabra v. Global Trade Finance Ltd., decided on 9th July, 2010 and 29th July, 2010 passed in Criminal Application No. 1344 of 2010, has held that the said provision is directory and not mandatory. In another judgment of the Learned Single Judge of this Court wherein it has been held that the said provision is mandatory. However, the Learned Single Judge in the said case was pleased to decide the said case, however, proceeded “to consider the cases wherein the accused had come to the Court at a belated stage and was pleased to reject such applications which were filed in the High Court on the said ground. Therefore, merely because the issue has been referred to the Full Bench, it does not mean that all such cases wherein such issue is raised should be stayed.

    10. There is no substance in the submissions made by the learned Senior Counsel for the petitioners. Hence, the writ petition is dismissed.

    Petition dismissed.
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    Comments

    Subhiksha Trading Services Ltd., Chennai And Others v. Kotak Mahindra Bank Ltd., Mumbai And Another
    (Aug 12, 2010)