Vs. Madhur & ANR.  INSC 1243 (20 July 2009)
IN THE SUPREME COURT OF INDIA CRIMINAL APPELLATE JURISDICTION CRIMINAL APPEAL
NO. 1341 OF 2009 [Arising out of SLP(Crl.) No. 8693/2008] K. SATYANARAYAN ...
S.B. SINHA, J.
appellant is before us aggrieved by and dissatisfied with the judgment and
order dated 25.7.2008 passed by the High Court of Judicature at Bombay, whereby
and whereunder a writ petition filed by him marked as Criminal Writ Petition
No. 514/2006 questioning the correctness or otherwise of the judgment and order
dated 4.2.2006 passed by the JMFC, Sakoli, in Summary Criminal Case
No.3990/2002 arraying him as an additional accused, has been dismissed.
original accused Shridhar son of Bhapuji Donapanji, is said to have issued a
cheque for Rs. 10 lakh to respondent No.1. The said cheque was 2 presented by
the respondent before the Bank of India, Branch Lakhani, for realisation, but
the same was returned to him with the endorsement "Fund
was served upon Shridhar for making payment of Rs. 10 lakh within 15 days of
the receipt thereof and on his failure to pay the amount, a complaint under
Section 138 of the Negotiable Instruments Act, 1881 (for short 'the Act') was
the hearing of the said complaint petition, allegedly, the Bank Manager stated
that the account was opened in the name of the appellant herein.
on or on the basis of the said statement, the complainant (respondent No.1
herein) filed an application purported to have been filed under Section 319 of
the Cr.P.C. before the learned Magistrate for summoning the appellant as an
additional accused in the said complaint application. The said application was
allowed by the learned Magistrate by his order dated 4.2.2002. A writ petition
preferred there agaisnt has been dismissed by the impugned judgment.
the Courts in ordinary circumstances may exercise their jurisdiction in terms
of Section 319 Cr.P.C. to summon any person as an additional accused. However,
the proviso appended to Section 138 of the Act mandates that before a complaint
petition thereunder becomes maintainable, the conditions precedents specified
therein must be satisfied. It is not in dispute that no notice was served upon
the appellant by the complainant-respondent No.1 in 3 terms of proviso (b)
appended to Section 138 of the Act and in that view of the matter, the
complaint petition being not maintainable against him, the learned Magistrate
must be held to have committed a jurisdictional error in passing the impugned
order dated 4.2.2006.
reasons aforementioned, the impugned judgment cannot be sustained which is set
aside accordingly and the appeal is allowed.
........................J (S.B. SINHA)
........................J (DEEPAK VERMA)
JULY 20, 2009.