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Judgment
D.G. Deshpande, J.—Heard Mr. Mundargi, the learned Counsel for the petitioner and the learned A.P.P. for the State. Nobody was present for contesting respondents Nos. 1 and 2.
This petition has been filed against the order of the Ld. Additional Chief Metropolitan Magistrate, (C.L. Thool) dated 26th April, 1997 by which the process issued against accused Nos. 1 and 2 was recalled and the accused were acquitted of the offence punishable under sections 138 and 141 of the Negotiable Instruments Act.
It was contended by Mr. Mundargi, the learned Counsel for the petitioner that the questions raised by the accused for discharge were all disputed questions of fact for which the evidence was required to be recorded by the Ld. Magistrate. According to him, once a cheque was issued, there was a presumption that there was primary liability of the accused to honour the cheque and if, according to the accused, there were certain other transactions which wipe out their liabilities then this aspect should not have been decided by the Ld. Magistrate on the basis of the oral submissions made.
I have gone through the impugned order and I find strong force in the objections raised by the learned Advocate for the petitioner because the Ld. Additional Chief Metropolitan Magistrate, Mazagoan, Mumbai, has considered the case of the complainant and the defence of the accused only on the basis of the oral submissions made by them when, in fact, the evidence should have been recorded since all objections were based on disputed questions of fact.
In view of this, the petition is allowed. Rule is made absolute accordingly. The impugned order dated 26th April, 1997 passed by the Ld. Additional Chief Metropolitan Magistrate, Mazagoan, Mumbai, is set aside. The complaint is restored to file and the same should be disposed of in accordance with law.
Petition allowed.