MAHENDRA A DADIA Vs. STATE OF MAHARASHTRA

JUDGEMENT

(1.) THIS order will dispose of Criminal Writ Petition Nos. 645 of 1998 in Case No. 1060/s/97, 646 of 1998 in Case No. 1061/s/97, 647 of 1998 in Case No. 1063/s/97, 648 of 1998 in Case No. 1064/s/97, 651 of 1998 in Case No. 1062/s/97, 3690 of 1997 in Case No. 1056/s/97, 3691 of 1997 in Case No. 1054/s/97 and 3692 of 1997 in Case No. 1057/s/97 and Criminal Application No. 624 of 1998 in Criminal Writ Petition No. 3690 of 1997 and 3691 of 1997 and Criminal Application No. 694 of 1998 in Criminal Writ Petition No. 3692 of 1997. The prayer made in the writ petitions under section 482 of the Cr. P. C. is that proceedings in respect of the aforesaid cases pending in the Court of the learned Metropolitan Magistrates 20th Court at Mazgaon, Mumbai be quashed and set aside. The petitioners are sought to be prosecuted in the aforesaid cases for an alleged offence under section 138 of the Negotiable Instruments Act (for short the Act), as amended. All the petitioners are accused in the learned Metropolitan Magistrates 20th Court, Mazgaon, Mumbai. The petitioner Nos. 2 to 5 in Writ Petition Nos. 645/98, 646/98, 647/98, 648/98, 651/98 and petitioner Nos. 2 to 6 in Writ Petition Nos. 3690/97, 3691/97 and 3692/97 are said to be not at all concerned with the management of the partnership firm. Criminal Application Nos. 624 of 1998 and 694 of 1998, have been filed by respondent No. 2 for vacation of the interim order of stay passed on 22nd December, 1997 in Writ Petition Nos. 3690/97, 3691/97 and 3692/97.

(2.) FOR the purposes of this order, the facts are taken from Criminal Writ Petition No. 645 of 1998.

(3.) A complaint was filed by Dr. Hasmukhlal Chhotalal Mody, respondent No. 2 herein, alleging that he is the creditor of the petitioners. Petitioner No. 6 is a partnership firm registered under the Indian Partnership Act, 1932 having its office and place of business at Amrut, Hansoti Road, Cama Lane, Ghatkopar (West), Mumbai- 400 086. Petitioner No. 6 is stated to be engaged in the business of construction and property development. Petitioner Nos. 1 to 5 are the partners of petitioner No. 6. It is categorically stated in the complaint that petitioner No. 1 to 5 jointly manage the business of petitioner No. 6. Respondent No. 2 had lent and advanced diverse amounts as and by way of loan carrying interest at the rate of 18% per annum to petitioner No. 6. The petitioners are said to be closely related to respondent No. 2. The accounts were maintained by petitioner No. 6 which were regularly sent to respondent No. 2. Petitioner No. 6 had sent the annual statement of account to respondent No. 2 for the year 1995-96 as on 31st March, 1996 after crediting the amount of interest on the outstanding amount of loan for the year 1995-96 (from 1-4-1995 to 31-3- 1996 ). Different amounts of money were said to be due from the petitioner to the respondent No. 2. The petitioners while crediting the interest on the loan amount had deducted a certain amount of money in each case towards income-tax at source in accordance with the provisions of the Income-tax Act, 1961. A certificate to this effect was issued by the petitioners to respondent No. 2. In the first week of March, 1996 respondent No. 2 had demanded repayment of loan by the end of March, 1996. Petitioner No. 1 had agreed to repay the outstanding amount of loan as on 31-3-1996 after crediting the amount of interest payable on the loan amount for the year 1995-96 and deducting income-tax at source. Petitioner No. 1 had promised to issue cheques in favour of respondent No. 2 towards the payment of the loan on 1st April, 1996. Petitioner No. 6 had issued a cheque bearing No. 816097 dated 1st April, 1996 for Rs. 97, 741-drawn in favour of respondent No. 2 on Indian Bank, Ghatkopar, Mumbai- 400 077. Similarly other cheques dated 1st April, 1996 were also issued which are subject matter of the other petitions. The cheques were sent to respondent No. 2 in the first week of April, 1996. These cheques were to be in full and final settlement of the loan account. It was requested by the petitioners that since petitioner No. 6 was facing financial difficulty the said cheques should not be deposited in the Bank Account till the end of August, 1996. Petitioner No. 1 had also promised to pay further interest on the amount of cheques separately for the period from 1-4-96 to 31-8-1996. Petitioner No. 1 had given assurances that the said cheques will be positively honoured when presented for realisation in the first week of September, 1996. Relying upon the aforesaid assurances respondent No. 2 had not deposited the cheques till 4th September , 1996. On presentation of the said cheques by respondent No. 2, the same were dishonoured and returned unpaid with the remarks "payment stopped by the drawer". Upon the dishonour of the aforesaid cheques, respondent No. 2 served the necessary notice on 14th September, 1996 calling upon the petitioners to make payment within a period of 15 days from the receipt of the notice. This notice was sent by registered post with the A. D. as well as by ordinary post under certificate of posting. This was duly received by the petitioners. The petitioners sent a reply through their Advocate by letter dated 30th September, 1996. According to respondent No. 2, the petitioners had raised false and frivolous contention about their liability for the payment against the dishonoured cheques. In view of the above, respondent No. 2 filed the complaint under section 138 of the Act on 22nd October, 1996. After complying with the necessary proceedings the learned Magistrate issued process against all the petitioners.