RAMESH HIMMATRAO KAWADE Vs. PRASANNA NEMICHAND MEHAR

JUDGEMENT

(1.) THE present writ petition is directed against the order passed by the Additional Sessions Judge, Aurangabad dated 11.9.1995 in Criminal Revision No.74 of 1995, whereby the order of re-calling of process and discharge of the present petitioner (original accused) dated 14-2-1995 passed by the Judicial Magistrate First Class was set aside and Magistrate was directed to take the complaint on file and proceed with the case according to law.

(2.) THE present respondent no. 1 lodged a complaint in which he has stated that he is a Contractor and runs a construction company known as M/s. Sunem Construction at Aurangabad. THE present petitioner/original accused has issued cheque of Rs. 15,000/- dated 8.7.1994, drawn on the State Bank of Hyderabad, Railway Station branch, Aurangabad in favour of the respondent no. 1 towards the price of the flat purchased by the petitioner from the complainant. It is further stated that the cheque was presented for encashment on 31-8-1994 and it was dishonoured with an endorsement "payment stopped by the drawer". On 8.9. 1994, the respondent no. 1 issued notice to the petitioner as required by law. THE petitioner failed to make the payment. It is contended by the petitioner that the cheque in question of Rs. 15,000/- was issued in favour of the present respondent no. 1 by way of loan. THE respondent no. 1/original complainant denied the contention of the present petitioner in respect of loan transaction and stated in the complaint that the petitioner has committed offence under Section 138 of the Negotiable Instruments Act and he be tried.

(3.) THE petitioner further contended that the total of the above stated break-up comes to Rs. 1,60,000/- and the cheque of Rs. 1,40,000/- was received by the petitioner no. 1 from L. I. C. Housing Finance Ltd. Thus, according to the present petitioner, the respondent no. 1 had received the total consideration of Rs. 3,00,000/- towards the flat in question and the sale deed was executed on 25-4-1994 by the present respondent no. 1 in favour of the petitioner in respect of the flat in question. THE learned Counsel further contended that in the circumstances, the question of additional payment of Rs. 15,000/- vide cheque dated 8.7.1994 towards the consideration of the flat does not arise. It is further stated that due to friendly relations, the present petitioner has advanced loan to the respondent no. 1 by cheque of Rs. 25000/ -. Rs. 13000/- & 15000/- THE cheques of Rs. 25,000/- and Rs. 13,000/- are encashed by the present respondent no. 1, However, by that time, the petitioner realized that the respondent no. 1 would not be in a position to repay the amount, he gave letter to the Bank to stop the payment, and accordingly the payment in respect of cheque dated 8.7.1994 amounting to Rs. 15,000/- was stopped. therefore, the provisions of Section 138 of the Negotiable Instruments Act are not applicable and the Judicial Magistrate First Class was justified in re-calling the process vide order dated 14.2.1995. According to the Petitioner, the Additional Sessions Judge did not take into consideration the above mentioned facts and circumstances and came to the wrong conclusion and recorded the findings, which are unsustainable in law.