ALI ASGAR TAYEBALI ARISIWALA Vs. FATIMA DEVELOPERS

JUDGEMENT

(1.) The Petitioner has challenged the order dtd. 15/12/2022 passed by the learned Additional Sessions Judge, Greater Mumbai, passed in the Criminal Revision Application No.65 of 2022. The Petitioner was the original complainant in C.C.No.533/SS/2021 on the file of Metropolitan Magistrate, 56 th Court, Sewree, Mumbai. At the first instance, the leaned Magistrate had issued process against the Respondent Nos.1 to 3 and one more accused for commission of offence punishable U/s.138 r/w. 141 of the Negotiable Instruments Act (hereinafter referred to as 'N.I.Act'). The learned Metropolitan Magistrate, 56 th Court, Mazgaon, had passed this order on 21/12/2020. Besides the Respondent Nos.1 to 3, there was original accused No.4 who is son of the Respondent No.2. The process was issued against all the four accused. This order was challenged in the Criminal Revision Application No.65 of 2022 by the accused Nos.1 to 3. The criminal revision application was allowed and hence, this petition is filed by the original complainant.

(2.) Learned counsel for the Petitioner submitted that the process was rightly issued by the learned Magistrate. The petitioner was to get an amount of Rs.1,80,00,000.00 for retiring from the partnership firm i.e. accused No.1 and certain cheques were given for payment of that amount. The subject matter of this proceedings is the cheque bearing No.021784 dtd. 24/12/2020 drawn on the State Bank of India, Kalina branch, for Rs.50.00 lakhs. The complaint mentions that, it was issued by the accused. This cheque was dishonoured and hence, the proceedings were filed.

(3.) Learned counsel for the petitioner submitted that, all the accused together are responsible for dishonour of the cheque and, therefore, process was rightly issued. The learned Additional Sessions Judge erred in allowing the criminal revision application. Learned counsel relied on the Memorandum of Understanding (M.O.U.) between the petitioner on one hand and the original accused Nos.2 and 3 i.e. the Respondent Nos.2 and 3 herein on the other hand. The said M.O.U. refers to the amount of Rs.1,80,00,000.00. It contains receipt of the said amount based on the post dated cheques. The said M.O.U. was signed by the original accused No.4 as witness. The receipt specifically included Cheque No.021784 which is the subject matter of the present complaint. He, therefore, submitted that, the Respondent Nos.1 to 3 are also equally liable to be prosecuted and convicted.