ASHISH C SHAH Vs. SHETH DEVELOPERS PVT LTD

JUDGEMENT

(1.) Rule. Rule made returnable forthwith. Heard the learned Counsel for the parties.

(2.) To state in brief, the respondent No.1 before this Court is the original complainant and the present petitioner is the original accused No.1 in Criminal Case No.1171/SS/2009. Respondent No.3 is the original accused No.2 and wife of the present petitioner. According to the complainant, the accused persons had represented to the complainant that they would acquire land to the extent of 1000 acres at Village Nandgaon and it could be developed jointly by the complainant and accused persons. Accused persons agreed to give inspection of the title deeds on the lands acquired till then subject to advance payment of Rs.25 crore by the complainant. Accordingly, the complainant issued a cheque of Rs.25 crore in the name of the accused No.1 on 25.2.2008. That cheque was encashed and credited to the account of the accused persons. For certain reasons, the parties could not proceed ahead with the development and the accused persons assured to repay amount of Rs.25 crore with interest thereon. Accordingly, a cheque dated 7.1.2009 for the amount of Rs.25 crore drawn on the joint account of both the accused with the Indian Overseas Bank, Wadala Branch was issued in favour of the complainant. The cheque was actually signed by the accused No.1-petitioner. However, the accused persons requested the complainant not to present the cheque for encashment till 30.1.2009 due to financial difficulties, but they assured to pay interest on the said amount. By letter dated 6.2.2009, the accused persons admitted the liability to pay the amount of Rs.25 crore and also agreed to pay interest at the rate of 18% per annum on the said amount. The cheque was deposited by the complainant with its Banker IDBI, Cuffe Parade Branch on 5.2.2009 and the said Bank presented it to the Indian Overseas Bank for encashment. However, on 6.2.2009, the cheque was returned with the marks "insufficient funds". The intimation of the same was given by IDBI to the complainant on 7.2.2009. On 18.2.2009, the complainant issued a notice to the accused persons demanding the payment of the cheque amount. The notice was received by the accused persons on 20.2.2009 and they also replied to the same by letter dated 6.3.2009 through Advocate Prashant Chande denying the liability. Therefore, the complaint was filed under Section 138 of the Negotiable Instruments Act against both the accused.

(3.) After issuance of the process, the accused persons appeared before the trial Court. On 19.11.2009, Sharad Nathuram Doshi, Executive Assistant to the Chairman-cum-Managing Director of the complainant company and the constituted attorney of the complainant filed affidavit in lieu of examination-inchief along with a list of documents. On the same day, the learned Magistrate directed to addmit and exhibit those documents in evidence. That order as well 3. After issuance of the process, the accused persons appeared before the trial Court. On 19.11.2009, Sharad Nathuram Doshi, Executive Assistant to the Chairman-cum-Managing Director of the complainant company and the constituted attorney of the complainant filed affidavit in lieu of examination-inchief along with a list of documents. On the same day, the learned Magistrate directed to addmit and exhibit those documents in evidence. That order as well as issuance of process were challenged by both the accused persons by filing two separate Writ Petitions. By the order dated 24.9.2010, this Court rejected the prayer to quash the issuance of process, but finding that the proper procedure was not followed in admitting and exhibiting the documents in evidence, direction was given to the trial Court to hear the parties and to pass appropriate order in accordance with law.. As per the said direction, the learned Magistrate heard the parties and passed the impugned order dated 6.12.2010 rejecting the the objections raised as per Ex.28 by the accused persons to exhibit the documents produced along with the complaint and evidence by the applicant. The learned Magistrate held that all the documents as already exhibited could be read in evidence. However, the accused are given liberty to bring the facts in respect of each and every document to challenge the probative value of the same. That order is sought to be quashed by filing this petition by the original accused No.1.