Order 1

Order Details: Order Below EX 1
Pdf Text: MHMM180002102022
Summary Cases/5800006/2022
Omakara Assets Reconstruction Pvt Ltd Vs. The
Polaris Textile City
IN THE COURT OF THE JUDICIAL MAGISTRATE (FIRST CLASS),
58TH COURT, BANDRA, MUMBAI
ORDER BELOW APPLICATION EXH.14
1. This is an application for amendment in the complaint, rather to
say the application for substitution of new representative in place of original
complainant.
2. It is contended on behalf of the applicant that an Assignment
Agreement dated 31.05.2023 is executed with the proposed complainant
named Edelweiss Asset Reconstruction Company Ltd. The rights are assigned
in respect of financial assistance. Hence, this application.
3. The application is strongly objected on behalf of the accused
contending that the rights were initially assigned to the complainant by ECL
Finance Ltd. Now by this application, the company in whose favour financial
rights are assigned is again assigning the rights to proposed complainant.
The accused has question the right of assignment on the ground of criminal
liability and accordingly, prayed for rejecting the same.
4. Heard both sides.
5. Needless to state that the original complainant Omkara Assets
Reconstruction Pvt. Ltd., filed the complaint stepping in the shoes of ECL
Finance Ltd. and Edelweiss Assets Reconstruction Company Ltd. who alleged
to have provided financial assistance to the accused. In fact, now the original
complainant has again re-assigned the rights to the proposed complainant
named Edelweiss Assets Reconstruction Company Ltd. by virtue of an
Assignment Agreement dated 31.05.2023. In the scenario question crops up
whether rights can be assigned for determining any criminal liability
envisaged under section 138 of the Negotiable Instrument Act.
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Order Below Exh. 14
6. Needless to state that the person whom so ever is a holder in
due course of the cheque drawn for in discharge of any legal liability can
pursue the complaint. Herein the case, the rights are assigned vide
Agreement dated 31.05.2023. Thereby the proposed complainant becomes
holder in due course of the cheque in question alleged to be issued by the
accused. Therefore, there is no legal hitch in allowing the application even
though the original complainant has presented the complaint stepping into
shoes of ECL Finance Ltd. and another. It will not caused any prejudice to
the rights of the accused. Further accused has ample opportunity to
challenge the locus standi of complainant on all legal grounds during the
trial. There would not be any change in the nature of the complaint.
7. In the case
Harikrishnan Selvakumar Vs. L & T Infrastructure
Finance Company Ltd., in Criminal Application No.329 of 2015 in Criminal
Writ Petition No. 1709 of 2014 delivered on 07.03.2016, Hon’ble Bombay
High Court has held that, “In view of section 9 of the Negotiable Instrument
Act which defines “Holder in due course” to mean “any person, who, for
consideration, becomes possessor of cheque of the payee or endorsee
thereof”. Hence, I pass following order.
ORDER
1. Application is allowed keeping open all defence for the accused in
the interest of justice.
2. Complainant to do necessary changes in the caption of the
complaint forthwith.
3. Order dictated and pronounced in open court.
Mumbai, (M. P. Saraf)
Dated : 09.10.2024. Judicial Magistrate(First Class),
58th Court, Bandra, Mumbai.
J.O.Code-MH01362
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Order Below Exh. 14
CERTIFICATE
I affirm that the contents of this P.D.F. file Order are same, word to word as per the
original Order.
Name of Stenographer : Mrs. Aditi Ravikiran Dalvi
Court : Judicial Magistrate(First Class), 58th Court, Bandra,
Mumbai.
Dictated in open court on : 09.10.2024.
Transcribed and Typed on : 09.10.2024.
Order printed and Signed on : 09.10.2024.
Order Uploaded on : 09.10.2024.
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