1 cri.wp 2311.09 group hvn IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE SIDE CRIMINAL WRIT PETITION NO. 2311 OF 2009 WITH CRIMINAL WRIT PETITION NO. 2312 OF 2009 WITH CRIMINAL WRIT PETITION NO. 2313 OF 2009 WITH CRIMINAL WRIT PETITION NO. 2314 OF 2009 WITH CRIMINAL WRIT PETITION NO. 2315 OF 2009 Kivi Coatings Pvt. Ltd. ... Petitioner Versus The State of Maharashtra and Ors. ... Respondents Mr. B.N. Agarwal i/by Mr. A.M. Sarogi for the petitioner. Respondent no. 2 present in person. Mr. P.S. Hingorani, A.P.P. for State. CORAM : SMT. R.P. SONDURBALDOTA,J. DATED : FEBRUARY 07, 2011 P.C. 1. This is a common order in above five petitions filed by a private limited company challenging the order dated 3rd April, 2009 passed by the Sessions Court in Revision Applications, refusing to set aside the order of issuance of process against it. The impugned orders however, set aside the process issued against the directors of the company on the ground that the 2 cri.wp 2311.09 group complaints as filed do not contain the necessary averments to connect the directors to the offences alleged. 2. The respondent no. 2-original complainant carries on the business in the name of M/s. Ganga Enterprises. of transportation of well water. It is alleged that original accused nos. 10 to 12 who were partners of a firm by name M/s. New Metal Works had given proposal of digging a borewell in a plot bearing no. G-1 and G-2A of Thane Industrial area. For that purpose an agreement had been entered into. However in the year 1999, due to fire in Mehta House, of Cama Industrial area, partnership firm sustained losses. Therefore, the firm had borrowed a sum of Rs. 15 lacs. from respondent no. 1. On 18th January, 2011 the partnership firm of M/s. New Metal Works was converted into a private limited company i.e. the petitioner herein. All the partners became directors in the company. According to the complaint, a meeting was held on 6th March, 2004 in which original accused nos. 2 to 12 agreed to settle the loan transaction in the sum of Rs. 23,64,442/-. For that purpose they issued five cheques dated 7th March, 2004 in the sum of Rs.1,14,442/- each drawn on Development Credit Bank, 3 cri.wp 2311.09 group Goregaon Branch Mumbai to respondent no. 1. When presented for payment, the cheques were dishonoured for the reason funds insufficient”. Thereafter respondent no. 2 served “ statutory notice upon the petitioner as well as original accused nos. 2 to 12 and after non compliance with the requisition in the notice, filed proceedings under section 138 of the Negotiable Instruments Act in which process came to be issued against all the accused persons. 3. Mr. Agarwal, the learned counsel for the petitioner submits that the cheques in question are not issued in discharge of debt or liability from the petitioner to respondent no. 2. There is nothing on record to show that the petitioner owes any amount to respondent no. 2. According to him, if at all respondent no. 2 is said to have taken over the liability of the partnership firm, there ought to have been documents executed for the purpose. It is also sought to be contended across the bar that the cheques issued are forged cheques. Perusal of the reply sent by the petitioner to the statutory notice does not contain any allegation that the cheques issued are forged cheques. The reply contains a bald denial of issuance of cheques. 4 cri.wp 2311.09 group The perusal of the zerox copy of the cheques annexed to the petition shows that the same have been issued for and on behalf of the company and signed by a Director. 4. By virtue of section 139 of the Negotiable Instruments Act, the court has to draw a presumption that the holder of the cheques received the cheques for discharge of a debt or liability until the contrary is proved. Hence, at the initial stage of the proceeding, the court is not justified in entertaining and accepting a plea that there was no debt or liability. This has been held by the Apex Court in umpteen number of judgments including Maruti Udyog Ltd. Vs. Narender and others reported in (1999) 1 SCC 113. As regards the allegation of the cheques being forged, respondent no. 2 must get an opportunity to establish his case before the trial court by producing necessary evidence. It cannot be said that the complaint as filed discloses no offence. Hence, petitions are dismissed. [Judge]