Bombay High Court
KAPIL TREHANversusTHE STATE OF MAHARASHTRA AND ANR.
- Decided
- Disposal
- Disposed Off
- Bench
- SHIVKUMAR DIGE
Holding
The issue process order is quashed and the matter is remanded to the Metropolitan Magistrate to pass a fresh order after proper consideration of the pre‑cognizance evidence.
Summary
The petitioner Kapil Trehan filed a criminal writ petition challenging an issue process order dated 20 August 2018 passed by a Metropolitan Magistrate in a case under Section 138 read with Section 141 of the Negotiable Instruments Act. The petitioner alleged that the order was cryptic, lacked application of mind, and omitted essential details of the transactions, dates of cheque dishonour, and demand notices. The respondent State argued that the order was well‑reasoned and should not be interfered with, while the second respondent contended that the complaint complied with all formalities. The High Court examined the impugned order, found it deficient for not recording material particulars, and held that the magistrate had not applied sufficient mind. Consequently, the Court quashed the issue process order, remanded the matter to the Magistrate for a fresh order, and directed expedited proceedings.
Issues considered
- Whether the issue process order passed by the Metropolitan Magistrate was vitiated by lack of application of mind and insufficient particulars.
- Whether the order should be set aside and the case remanded for a fresh issue process order.
Legislation cited
- Negotiable Instruments Act — s. 138, 141
Subjects
- issue process
- Negotiable Instruments Act
- Section 138
- criminal procedure
- writ petition
- quash
- remand
- application of mind
- Magistrate order
Judgment
95-WP-3917-2019.doc
Shubhada S Kadam
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CRIMINAL APPELLATE JURISDICTION
CRIMINAL WRIT PETITION NO. 3917 OF 2019
Kapil Trehan
Versus
The State of Maharashtra and anr.
_________________________________________________________________
Mr. Vikram Chaudhary, Senior Advocate along with Mr. Aditya Mithe, Mr.
Sachin Agawane and Ms. Esha Joshi, Advocates for the Applicant.
Mr. B. B.Kulkarni, APP for Respondent No.1-State.
Mr. Amit Ghag, Advocate for Respondent No.2.
_________________________________________________________________
CORAM : SHIVKUMAR DIGE, J.
DATE : 4th MARCH, 2026.
P.C. :
1. Heard learned senior counsel for the petitioner, learned APP for
respondent-State and learned counsel for respondent No.2.
2. The challenge in this petition is to the issue process order dated
20th August 2018 passed in C.C.No.6894/SS/2018 by learned Metropolitan
Magistrate, 33rd Court at Ballard Pier, Mumbai.
3. It is contention of learned senior counsel for the petitioner that
the learned Metropolitan Magistrate has passed a cryptic order, without
going through the record and without application of mind. Hence,
requested to allow the petition.
SHUBHADA 4. It is contention of learned counsel for respondent No.2 that the
SHANKAR
KADAM compliant under Section 138 of the Negotiable Instruments Act was filed
Digitally signed by
SHUBHADA
SHANKAR KADAM
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Shubhada S Kadam
against the petitioner. The learned Metropolitan Magistrate has passed a
well reasoned order, no interference is required in it and requested to
dismiss the writ petition.
5. Learned APP submitted that appropriate order be passed.
6. I have heard all learned counsel, perused the impugned order,
which reads thus :
“Perused the complaint along with affidavit of verification
and pre-cognizance evidence with documents. Gone
through the contents of complaint. It appears that, the
complainant has complied all necessary formalities before
filing the complaint. The complaint is within limitation.
Hence, the order :-
ORDER
Issue process against Accused for the offence punishable
u/s.138 rI/w.141 of N. I. Act on P. F., returnable on
17/11/2018”.
7. It is contention of learned counsel of the applicant that this
order is passed without application of mind. Whereas it is contention of
learned counsel for respondent No.2 that the order is passed after perusing
the affidavit of evidence filed by the complainant. Though learned
Magistrate has mentioned that he has passed the order after perusal of the
affidavit of evidence filed by the complainant, in my view, the learned
Magistrate should have mentioned about the details of the transactions
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Shubhada S Kadam
between the petitioner and respondent No.2. Learned Magistrate should
have mentioned about the dates of dishonour of cheques, demand notice
issued by respondent No.2 to the petitioner but no such details are
mentioned in the issue process order. Hence, I deem it fit to remand this
case back to the learned Magistrate to pass fresh issue process order after
considering the pre-cognizance evidence produced on record.
8. In view of above, I pass following order :
ORDER
(i) The writ petition is partly allowed.
(ii) The issue process order dated 20th August 2018 passed in
C.C.No.6894/SS/2018 by learned Metropolitan Magistrate, 33rd
Court at Ballard Pier, Mumbai, is quashed and set-aside.
(iii)The matter is remanded back to learned Magistrate, 3 rd Court,
Ballard Pier, Mumbai, for passing fresh issue process order.
(iv) All contentions of both parties are kept open.
(v) The Trial Court is requested to expedite the proceedings as the
matter is very old.
The writ petition stands disposed of in above terms.
(SHIVKUMAR DIGE, J.)
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