RAMESH RATILAL TANNA Vs. GAUTAM JAYANTILAL NAGARWALA

JUDGEMENT

(1.) THE facts giving rise in the two applications are same except for the amount of the cheque which in Criminal Application No. 561 of 1998 is Rs. 10,000/- and in case of Criminal Application No. 562 of 1998 is Rs. 14,000/ -. Accordingly, the two applications were heard together and it is proposed to dispose of the same by common judgment.

(2.) THE non-applicant had filed a complaint under section 138 read with section 141 of the Negotiable Instruments Act and under section 420 of I. P. C. After examining the complainant, the Magistrate issued process on 10-6-1997. The present applicant filed an application on 9-12-1997 for discharge and the Magistrate vide order dated 10-2-1998 dismissed the said application for discharge. The applicant, namely the accused, has approached this Court for quashing the prosecution as well as issuance of process under section 138 of the Negotiable Instruments Act.

(3.) LEARNED Advocate for the applicant argued before me that on the face of the complaint and the sale deed, it is crystal clear that the entire interest whatever was due had already been paid by the present applicant to the non-applicant at the time of execution of the sale deed as is clear from Clause 22 of the sale deed. Therefore, according to the learned Advocate for the applicant, the case of the complainant that the cheque in question was issued towards part payment of interest is falsified by Clause 22 of the sale deed itself and as such the cheque in question is not towards any legal liability. The case of the applicant is that the said cheques were issued towards payment of sales tax, if any payable by the applicant even after the execution of the sale deed. He, therefore, contends that since prima facie the applicant has not been able to make out a case of legal liability as contended by him in the complaint, the proceedings are liable to be quashed. Reliance was placed by the learned Advocate for the applicant on (Pepsi Foods Ltd. and another v. Special Judicial Magistrate and others), reported in 1998 (5) Bom. C. R. (S. C.)426 : 1998 (1) Mh. L. J. 599; (G. Sagar Suri and another v. State of U. P. and others), reported in 2000 (5) Bom. C. R. (S. C.)694 : 2000 Bank. J. (S. C.)639 : 2000 (2) S. C. C. 636; and (State of Haryana and others v. Bhajanlal and others), reported in 1992 Suppl. (1) S. C. C. 335.