[-1-] IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL W.P.NO.650 OF 2007 Mr.Vijay Amrutlal Patel ..Petitioner Vs. Birla Global Finance Ltd. & Anr. ..Respondents ... Mr.H.D.Magar advocate for Petitioner Mr.J.P.Yagnik A.P.P. for the State ... CORAM: SMT.V.K.TAHILRAMANI,J. CORAM: SMT.V.K.TAHILRAMANI,J. CORAM: SMT.V.K.TAHILRAMANI,J. DATE : JANUARY 21, 2008 DATE : JANUARY 21, 2008 DATE : JANUARY 21, 2008 P.C. P.C. P.C. 1. Heard the learned advocate for the petitioner and the learned A.P.P. for the State. 2. The process came to be issued against the petitioner under Section 138 of Negotiable Instruments Act in C.C.No.(Old 1408/S/99) New No.8280/S/2002 which is now pending before the Metropolitan Magistrate, 10th Court, at Andheri, Mumbai. [-2-] 3. Being aggrieved by the order issuing process, the petitioner preferred a revision before the Sessions Court. By order dated 18.1.2007, the learned Additional Sessions Judge dismissed the revision. The learned Sessions Judge held that documents relied upon by the applicant-accused were required to be tested in the trial at the time of recording evidence. As the entire case of the applicant-accused is based on the documents, it is a matter of evidence to appreciate authenticity and genuineness of the documents relied upon by the parties and the trial was necessary, hence, the evidence is required to be led in respect of three cheques which have been subsequently issued by the applicant-accused. Holding thus, the learned Sessions Judge dismissed the revision. 4. The case of the petitioner is that there is no liability on his part to pay the amount of the cheques in question and hence, no offence can be said to be made out under Section 138 of Negotiable Instruments Act. It is stated that the petitioner took loan from the respondent no.1 Birla Global Finance Ltd. for purchase of two [-3-] trucks. Loan amount of Rs.12,68,354/- came to be advanced. The said loan was repaid by monthly instalment of Rs.51,573/-. As there was default on the part of the petitioner the two trucks came to be seized. The case of the petitioner is that entire amount was paid to respondent no.1 company. After seizure of the trucks the petitioner had approached complainant-Company and showed his willingness to clear the entire dues. According to the petitioner, on 29.1.1997 the petitioner paid Rs.4,90,000/- to the complainant-company. On 31.1.1997 he paid balance amount of Rs.18,653/-. According to the petitioner, after taking the amount of Rs.5,08,653/- the entire dues of the company were cleared by the accused hence, the complainant-company on the request of accused issued No Objection Certificate. The case of the accused is that once all the dues were cleared by him and No Objection Certificate was given by the company, no other liability remained on the part of the petitioner and hence, he cannot be prosecuted under Section 138 of Negotiable Instruments Act. 5. However, the stand of the complainant-company [-4-] as reflected from the complaint is that in the month of April, 1998 at the time of auditing the accounts, they came to know that the accused (petitioner) had short paid the amount of Rs.3,37,482/-. Hence, the Company immediately contacted the accused (petitioner). The petitioner was explained the entire facts and he was shown the entire accounts. As per the complaint, after scrutinising their account, the accused-petitioner also admitted that he had paid Rs.3,37,482/- less, however, the petitioner stated that he had no money to clear the dues immediately and with a view to clear liability of Rs.3,37,482/-, the accused(petitioner) had issued three post dated cheques. As per the complainant, the assurance was given by the accused that all the cheques will be honoured on presentation. The details of the cheques are as under: -------------------------------------------------- Cheque No. Date Amount Drawn on -------------------------------------------------- 099311 12.10.98 1,12,492/- Development Credit Bank Ltd.Malad [-5-] 099312 13.11.98 1,12,494/- ---do--- 099313 4.12.98 1,12,494/- ---do--- -------------------------------------------------- . However, the said cheques were dishonoured. Thereafter, necessary formalities were complied with by the company i.e. sending of notice and after the petitioner failed to pay the amount after receipt of the notice, the complaint came to be filed. On perusal of the complaint, it appears that the liability did arise on the part of the petitioner to pay Rs.3,37,482/-. In view of the stand taken by the respondent-company and the petitioner-accused leading of evidence would be necessary. It is clear that cheques were issued subsequently i.e. after 29.1.1997 i.e. the date when according to the petitioner, he had cleared all the dues of the complainant-company. If he had cleared the dues of the company on 29.1.1997, one fails to understand as to why the cheques were issued dated 12.10.98, 13.11.98 and 4.12.98. Looking to the facts mentioned in the complaint, prima facie, it does appear that after 29.1.97 there was some liability on the part of the petitioner pursuant to which, the cheques came to [-6-] be issued by him. The case is mostly based on documents. Looking to the stand taken by the petitioner and the respondent-company, especially as the case is based on documents, it would be necessary to lead evidence to appreciate the authenticity and genuineness of the documents and this can only be done during the trial. Looking to all the facts, no fault can be found with the reasoning of the learned Sessions Judge. No interference is called for. Writ petition is rejected. [SMT.V.K.TAHILRAMANI, J.]