SARAL ENTERPRISES Vs. ASHOK THAPAR

JUDGEMENT

(1.) THE petitioners-original accused nos. 1 to 3 have filed this application challenging the order passed by the learned Metropolitan Magistrate, 23rd Court Bombay dt.27th June 1995 passed below the application filed by the petitioners dated 4th May 1995 and prayed that the said order of the learned Metropolitan Magistrate be quashed and set aside and further proceedings of Criminal Case No.270/W/1989 pending before the Metropolitan Magistrate, 23rd Court Bombay be stayed pending hearing and final disposal of Civil Summary suit No.1708 of 1992 pending before the High Court. By way of interim relief, the petitioners also prayed that further proceedings of the said Criminal Case be stayed during the pendency of the above application. The petitioners while filing this application have produced all the documents as well as the complaint filed by the complainant against the petitioners for the offence under section 420 read with 34 of the I.P.C. and under section 138 of Negotiable Instruments Act, 1881. The petitioners have also produced documents pertaining to the Civil Suit filed between the parties and pending before the High Court and the order passed in the said Summary Suit in Summons for Judgment being No.527 of 1992 taken out by the complainant in Summary Suit No. 1708 of 1992. At this juncture, I am not required to discuss the documents annexed to this application filed by the petitioners. However, while dealing with the application, I am not required to consider the order passed by the learned Metropolitan Magistrate dated 27th June 1995 below application filed by the petitioners for stay dated 4th May 1995 in the said Criminal Case No. 270/W/1989. The original complainant had filed complaint against the petitioners-original accused in the Court of learned Metropolitan Magistrate 23rd Court, Bombay against the accused on 14th March 1995 for the offence under section 420 read with section 34 of the I.P.C. and also for the offence under section 138 of the Negotiable Instruments Act, 1881. The complainant is a sole proprietors of M/s. Maharashtra Savings, doing business of finance and investment and the original accused no.1 is a partnership firm engaged in the business of construction and development of estate. The original accused nos. 2,3 and 4 are the partners of the said firm and the said accused are looking after the day to day business and activities of the said firm. Original accused no.5 is a private limited Company joined as a partner of accused no.1 and as reflected in the complaint the accused are carrying on their business activities at Bombay. According to the complainant, he has entered loan transaction with the accused to the extent of 14.50 lakhs and he advanced amount on 10th June 1986 by issuing cheques for an amount of Rs.8 lakhs being cheque No.421052 and on the very day another amount of Rs.7.50 lakhs being cheque no.421053. On 31st October 1986 by issuing four different cheques of Co-operative Bank for an amount of Rs.4.50 lakhs and Rs.8 lakhs each the amounts were received by the accused. It is also in the complaint that for the repayment of the said amount, four different cheques were issued. The details of which are as under: (i) Cheque No.388052 dt.15.6.1989 for Rs.15,50,000.00 (ii) Cheque No.597796 dt.15.6.1989 for Rs.25,00,000.00 (iii) Cheque No.597797 dt.15.6.1989 for Rs.3,05,000.00 (iv) Cheque No.642410 dt.31.7.1989 for Rs.2,00,000.00 It is also the case of the complainant that upon presentation of first three cheques for payments, the said cheques have been returned dishonored with the remarks that "exceeds the arragenements". It is also further reflected in the complaint that through advocate a notice was given to the accused on 3rd August 1989. In short, complainant had prayed that process be issued against the respondent-accused. It is also seen from the order dated 14th March 1995 that process were issued against the accused under section 420 of the I.P.C. and under section 138 of the Negotiable Instruments Act and the said order was based considering the evidence led by the complainant by examining four witnesses. Even the complainant has given up his case regarding the charge for the offence under section 420 of the I.P.C. and while reading the order of the learned Magistrate, it indicates that learned Magistrate has framed charge against the original accused nos. 1 to 3 under section 138 r.w.141 of the Negotiable Instruments Act and the learned Magistrate has in the said order observed that no case is made out to frame the charge against the accused nos. 4 and 5 and least the charge under section 420 of the I.P.C. Accordingly, the learned Magistrate has framed the charge against the accused nos. 1 to 3 on 6th April 1995 for the offence under section 138 r.w. 141 of the Negotiable Instruments Act.

(2.) DURING the pendency of the said Criminal Case an application on behalf of the accused submitted before the learned Magistrate in the said case on 4th May 1995 through the advocate wherein the accused had prayed that during the pendency of the suit No.1708 of 1992 pending in the High Court, the proceedings of the Criminal Case No.270/W/1989 be stayed.

(3.) WHILE dealing with the said application filed by the accused dated 4th May 1995, the learned Metropolitan Magistrate as per his order dated 27th June, 1995 dismissed the application by speaking order and reading the said order, the learned Magistrate as even considering the various authorities cited before him has observed in his order while dismissing the application to the effect that in the present case four witnesses have been examined and the trial is already begun and further as directed by the High Court to dispose of the matter on or before the end of December 1995 and accordingly the application for stay was dismissed. It is this order is challenged by the accused by preferring this application under section 397 as well as under section 482 of the Code of Criminal Procedure and prayed that the Court may call for the Record and Proceedings from the trial Magistrate and on perusing the same, the Hon'ble Court may be pleased to set aside the said order and grant relief of stay of the said Criminal Case till the final disposal of the suit being Civil Suit No.1708 of 1992 pending in the High Court. As stated earlier, while filing this application, the accused have annexed all the documents and accordingly, during the hearing of the above application, the learned counsel appearing on behalf of the applicants-accused had taken me through the relevant documents annexed to this application including the application submitted by the accused praying for stay and the order passed below the said application by the learned Magistrate.