Abbas Hakim Vs. M/S. Contract Advertising (India) Ltd. and Another

Abbas Hakim vs M/S. Contract Advertising (India) Ltd. and Another

Type Court Judgment Court Mumbai Decided Oct 07, 1999

~3 min read

https://sooperkanoon.com/case/358669

For advocates & juniors · 7-day free trial

Brief this judgment before chambers

Stop skimming 50 pages - get an 18-section AI Brief on this case, ask scoped follow-ups, and find related precedents with Semantic Search. Full trial, no card required.

18-section brief - facts, issues, ratio, relief
Ask this case - answers cite the judgment
Semantic search - find precedents by meaning
Research drawer - sections, cites, related cases

Citation: sooperkanoon.com/358669
Court: Mumbai High Court
Judge: Dr. Pratibha Upasani, J.
Decided On: Oct 07, 1999
Case Number: Criminal Application No. 529 of 1993
Subject: Criminal;Commercial

Case Summary

AI-generated summary - not the official court judgment text.

The case debated on the application filed by the applicant, who was charged for the dishonor of the cheque, for quashing the order of the issuance of the process by the Court - The complaint was filed by the respondent after three months from the date of the issuance of the notice of the demand - The complaint was b...

Key legal issue: Criminal;Commercial
Acts & sections: Negotiable Instruments Act, 1881 - Sections 138; Code of Criminal Procedure (CrPC) , 1973 - Sections 482

Parties & Advocates

Appellant / Petitioner

Abbas Hakim

Advocate Girish Kulkarni, Adv.

Respondent

M/S. Contract Advertising (India) Ltd. and Another

Advocate M.P. Galeria, A.P.P.

Legal References

Acts: Negotiable Instruments Act, 1881 - Sections 138; Code of Criminal Procedure (CrPC) , 1973 - Sections 482
Reported In: 2000(5)BomCR438; 2000BomCR(Cri)438

Excerpt

.....desai & d.b. bhosale, jj] arrest of accused - held, a police officer or a person empowered to arrest may arrest a person without intervention of the court subject to the limitations specified under the provisions of the code. the provisions of section 41 of the code provides for arrest by a police officer without an order from a magistrate and without a warrant. a distinct and different power under section 44 of the code empowers the magistrate to arrest or order any person to arrest the offender. under section 44 of the code, that power is vested in the court of the magistrate when an offence is committed in his presence. if the legislature has taken care of providing such specific power under section 44 of the code, then there could be no reason for such a power not to be specified under the provisions of chapter xii of the code. in terms of section 41, a police officer may arrest a person without a warrant or order from the magistrate for any or all of the conditions specified in that provision. language of this provision clearly suggested that the police officer can arrest a person without an order from the magistrate. thus, there appears to be no reason why on the strength of section 156(3) of the code, any restriction should be read into the power specifically granted by the legislature to the police officer. of course, freedom of investigation is the essence of these provisions but in order to suppress the mischief it is sufficiently indicated under different provisions of the code that the arresting officer should exercise his power or discretion judiciously and should be free of motive. some kind of inbuilt safeguard is available to the accused in the cases where the magistrate directs investigation under section 156 (3) of the code by taking recourse to the provisions of section 438 of the code by approaching the court of session or the high court for such relief. thus, during the course of investigation of a criminal case, an accused is not ..........accused being aggrieved by the order of issuance of process passed by the metropolitan magistrate, 33rd court, ballard pier, bombay in criminal case no. 51/s of 1991 under section 138 of the negotiable instruments act, 1881.3. few facts which are required to be stated are as follows:as per the story of the applicant, applicant and opponent no. 1 had entered into an agreement dated 18th july, 1990, and by this agreement, the opponent no. 1 purchased the rights to telecast the t.v. serial 'sunehre warq'. the opponent no. 1 was to make payment of rs. 9,10,000/- as per the schedule of the agreement, but paid only rs. 1,18,000/-. as the money was not forthcoming, the contract was terminated by the applicant and he returned the cheque by letter dated 23rd august, 1990. cheque dated 1st september, 1990 was presented by the opponent no. 1 in their bank on 27th november, 1990 but the same was returned dishonoured to the opponent no. 1 by the bank with intimation dated 7th december, 1990 with remarks 'refer to drawer'.4. as per the case of the applicant, the opponent no. 2 then gave notice to the applicant on 7th december, 1990 as per the requirement of the provisions of the negotiable instruments act, 1881, which was received by the applicant on 11th december, 1990. thereafter, opponent no. 1 re-deposited the cheque on 12th january, 1991, and on further completing the formality, filed case in the court of metropolitan magistrate, 33rd court, ballard pier, bombay, on 8th march, 1991. thereafter, process came to be issued by the learned magistrate against the accused. being aggrieved, the applicant has approached this court, praying that the said order of issuance of process be quashed.5. it is the contention of the applicant that the provisions of the negotiable instruments act are quite stringent which are to be scrupulously complied with, and that, the complainant no. 1 has not complied with this provisions. it is pointed out by mr. kulkarni appearing.....

Full Judgment

ORDER

Dr. Pratibha Upasani, J.

1. This matter appeared on Board on number of occasions. However, Opponent No. 1 continuously remained absent though duly served.

2. The present Criminal Application is filed by the applicant/original accused being aggrieved by the order of issuance of process passed by the Metropolitan Magistrate, 33rd Court, Ballard Pier, Bombay in Criminal Case No. 51/S of 1991 under section 138 of the Negotiable Instruments Act, 1881.

3. Few facts which are required to be stated are as follows:

As per the story of the applicant, Applicant and Opponent No. 1 had entered into an agreement dated 18th July, 1990, and by this agreement, the Opponent No. 1 purchased the rights to telecast the T.V. Serial 'Sunehre Warq'. The Opponent No. 1 was to make payment of Rs. 9,10,000/- as per the Schedule of the agreement, but paid only Rs. 1,18,000/-. As the money was not forthcoming, the contract was terminated by the applicant and he returned the cheque by letter dated 23rd August, 1990. Cheque dated 1st September, 1990 was presented by the Opponent No. 1 in their Bank on 27th November, 1990 but the same was returned dishonoured to the Opponent No. 1 by the Bank with intimation dated 7th December, 1990 with remarks 'Refer to Drawer'.

4. As per the case of the applicant, the Opponent No. 2 then gave notice to the applicant on 7th December, 1990 as per the requirement of the provisions of the Negotiable Instruments Act, 1881, which was received by the applicant on 11th December, 1990. Thereafter, Opponent No. 1 re-deposited the cheque on 12th January, 1991, and on further completing the formality, filed case in the Court of Metropolitan Magistrate, 33rd Court, Ballard Pier, Bombay, on 8th March, 1991. Thereafter, process came to be issued by the learned Magistrate against the accused. Being aggrieved, the applicant has approached this Court, praying that the said order of issuance of process be quashed.

5. It is the contention of the applicant that the provisions of the Negotiable Instruments Act are quite stringent which are to be scrupulously complied with, and that, the complainant No. 1 has not complied with this provisions. It is pointed out by Mr. Kulkarni appearing for the applicant that the cheque was deposited twice by the complainant, when as per the provisions of law, cause of action arose only once. To substantiate his argument, he relied upon 1999(5) Bom.242 : 1999 BJ 612 : 2000 DoCh. (S.C.)759 in Criminal Appeal No. 589 of 1992 dated 28th August, 1998 Sadanandan Bhadran v. Madhavan Sunil Kumai. It is also pointed out by him that while the notice was dated 7th December, 1990, the complaint came to be filed after a period of three months on 8th March, 1991, and hence, the same is not maintainable, and hence, the process is required to be quashed.

6. I have heard Mr. Kulkarni, appearing for the applicant and Mr. Galeria, A.P.P., appearing for Opponent-No. 2-State Mr. Galeria concedes after perusing the proceedings, that what is submitted by the applicant/accused is correct. I have also perused the proceedings. After perusing the record in the above matter, I find force in the submission made by Mr. Kulkarni appearing for the applicant. Hence, the following order :

Criminal Application No. 529 of 1993 is allowed in terms of prayer Clause 6(iii) and is disposed of.

A sum of Rs. 60,000/- (Rupees Sixty Thousand) deposited in this Court be returned to the applicant, on his making application to the Registrar, High Court, Bombay to that effect.

7. Application allowed.

Same Court & Year Mumbai · 1999 Same Parties Abbas Hakim vs M/S. Contract Advertising (India) Ltd. and Ano... Same Subject Criminal;Commercial Same Judge Dr. Pratibha Upasani, J. Acts & Sections Negotiable Instruments Act, 1881 - Sections 138; Code of Crim...

Criminal;Commercial