RENUKA Vs. STATE OF MAHARASHTRA

JUDGEMENT

(1.) Leave granted.

(2.) On a complaint filed under Sec. 138 of the Negotiable Instruments Act, 1881 [For short, the N.I. Act], learned Metropolitan Magistrate on being satisfied that there was prima-facie material to proceed against the second respondent issued process on 17/6/2022. The second respondent invoked the revisional jurisdiction of the Sessions Court for challenging the said order. The Sessions Court was of the view that on the date of issuance of the cheque in question, there was no legally enforceable debt to be satisfied by the drawer. By the order dtd. 30/12/2022, it set aside the order passed by the learned Metropolitan Magistrate issuing process. The complainant approached the High Court of Bombay by filing a writ petition under Article 227 of the Constitution of India and challenged the order passed by the Sessions Court. The learned Single Judge, however, dismissed the writ petition observing that no error of jurisdiction was found in the impugned order. Being aggrieved, the complainant has challenged the aforesaid orders in this Criminal Appeal.

(3.) Shorn of necessary details, the facts relevant for considering the challenge as raised are that it is the case of the appellant that she had some disputes with her husband, Mr. Ashwin Natwarlal Sheth in the matter of alleged illegal and fraudulent transfer of shares pertaining to Sheth Developers and Realtors (India) Limited and Sheth Developers Private Limited. She had filed various complaints after which her husband commenced negotiations for amicable settlement of the disputes. On 12/1/2022, a final draft settlement agreement was finalised and drawn up between the parties. One of the terms of the settlement was that the appellant's husband would gift to the appellant the fifth, sixth and seventh floor premises of Natwar Bungalow along with interest in a plot located in a Co-operative Housing Society. He also agreed to pay the appellant a sum of Rs.50.00 crores on executing a Declaration-cum- Indemnity document so as to withdraw the complaints filed by her against her husband. With a view to safeguard the interest of the appellant, the second respondent, who was a close friend of the appellant's husband, agreed to act as a mediator and to keep the amount of Rs.50.00 crores in an escrow account till the actual payment was made by the appellant's husband. Accordingly, on 12/1/2022, the second respondent issued Cheque No.080261 for an amount of Rs.50.00 crores in favour of the appellant. The appellant claims to have signed the document titled as Declaration- cum-Indemnity on 13/1/2022. It is the further case of the appellant that the sale of shares of the concerned entity was completed contrary to the settlement agreement and the appellant's husband received the sale consideration. The appellant accordingly deposited the cheque that had been issued by the second respondent for encashment. However, on 6/4/2022, the said cheque was dishonoured and returned with the remark 'payment stopped by drawer'. The appellant, on 20/4/2022, issued a notice under Sec. 138 of the N.I. Act to the second respondent. The said notice was replied by the second respondent on 4/5/2022, denying any liability to make such payment. The appellant gave her further reply to the second respondent and again called upon him to make the necessary payment. Since no further steps were taken by the second respondent, the appellant on 16/6/2022 filed a complaint against the second respondent under Sec. 138 of the N.I. Act.