ASHOK YESHWANT BADAVE Vs. SURENDRA MADHAVRAO NIGHOJAKAR

JUDGEMENT

(1.) Leave granted.

(2.) Challenge in this appeal has been made to judgment passed by the Bombay High Court dismissing writ application filed by the appellant upholding an order passed by a Sessions Court in revision refusing to interfere with the order passed by a Chief Judicial Magistrate taking cognizance and issuing process against the appellant for the offence under Section 138 of the Negotiable Instruments Act, 1881 (hereinafter referred to as 'the Act').

(3.) Surendra Madhavrao Nighojkar - respondent No. 1 filed a petition of complaint in the Court of Chief Judicial Magistrate, Satara on 2-9-1996 for prosecution of the appellant under Section 138 of the Act besides Section 420 of the Penal Code which was registered as Criminal Case No. 11348/96. Case of the complainant in short, is that on 4-7-1993 an agreement to sell was executed by the complainant for sale of his 1/3rd share in C.T.S. No. 189 within Pratapganj Peth in the district of Satara for Rs. 2,21,000/- and the said sale was required to be executed in the name of mother and wife of the appellant. At the time of agreement, Rs. 50,000/- was paid by the accused to the complainant. Thereafter on 10-11-1995 sale deed was scribed and on that date a further sum of Rs. 1,25,000/- was paid by the accused to the complainant besides a post-dated cheque drawn on State Bank of India, Satara Branch, for Rs. 46,000/- bearing the date as 20-1-1996 which was made over by the accused to the complainant. Later on, the accused on several occasions made a request to the complainant for not presenting the cheque in the bank as he was not having sufficient funds in his bank account which request was acceded to by the complainant. Ultimately, as the period of six months was going to expire on 19-7-1996, the complainant had no option but to present the said cheque before his banker for encashment, but the same was returned without clearance on 11-7-1996 with the endorsement "account closed." From these facts complainant deduced that the accused had deceived him which necessitated issuance of notice by the complainant to the accused on 22-7-1996 which was refused by him on 6-8-1996 whereafter the present complaint was filed.