1 crapn2440.10 IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD CRIMINAL APPLICATION NO. 2440 OF 2010 1. Prashant Bhalchandra Kulkarni, Age: 25 years, Occ: Education, 2. Shashank Bhalchandra Kulkarni, Age: 28 years, Occ: Education, Both R/o. Barshi Road, Latur District Latur. ...APPLICANTS VERSUS 1. Mahadev s/o Sambayya Kanade, Age: 43 years, Occ: Service, 2. Sau. Sangita Mahadev Kanade, Age: 38 years, Occ: Household, Both R/o. Mantri Nagar, Latur, District Latur. ...RESPONDENTS ... Mr. D.P. Palodkar, Advocate for applicants. Mr. S.V. Mundhe, Advocate for respondents. ... CORAM: S.S. SHINDE, J. DATE : 17TH FEBRUARY, 2011 PER COURT : . Heard learned Counsel for the applicant and 2 crapn2440.10 learned Counsel for the respondents. 2. From the perusal of the impugned judgment, it appears that one of the important reason for the dismissal of the complaint, as assigned by the trial Court is, that the cheque is given for the security. 3. Learned Counsel for the applicants placed reliance on the judgment of this Court in the case of Sai Auto Agencies, Amravati vs. Sheikh Yusuf Sheikh Umar reported in 2010(3) Mh.L.J. 702 and submitted that even if the cheque is given for the security, that is not a ground to acquit the accused. Therefore, learned Counsel would submit that this matter requires consideration. 4. On the other hand, learned Counsel for the respondents submitted that this judgment is delivered by this Court relying on the judgment of the Hon’ble Supreme Court in the case of ICDS Limited vs. Beena Shabeer, reported in (2002)6 SCC 3 crapn2440.10 426 and submitted that the facts of that case are totally different. Learned Counsel further submits that the judgment of the Hon’ble Supreme Court in the case of M.S. Narayana Menon alias Mani vs. State of Kerala and another, reported in 2006(5) Mh.L.J. 676 has not considered by this Court in the judgment in the case of Sai Auto Agencies, Amravati vs. Sheikh Yusuf Sheikh Umar reported in 2010(3) Mh.L.J. 702. 5. Upon hearing both the Counsel for the parties and upon perusal of both the judgments, judgment in the case of Sai Auto Agencies, Amravati vs. Sheikh Yusuf Sheikh Umar reported in 2010(3) Mh.L.J. 702 (supra) and judgment in the case of ICDS Limited vs. Beena Shabeer, reported in (2002)6 SCC 426 (supra), I am of the opinion that the matter requires consideration. 6. In the case of ICDS Limited vs. Beena Shabeer, reported in (2002)6 SCC 426 (supra), Hon’ble 4 crapn2440.10 Supreme Court held that expression the words "any cheque" and "other liability" occurring in Section 138 are the two key expressions which stand as clarifying the legislative intent so as to bring the factual context within the ambit of the provisions of the statute. This expressions leave no manner of doubt that for whatever reason it may be, the liability under Section 138 cannot be avoided in the event the cheque stands returned by the banker unpaid. Any contra-interpretation would defeat the intent of the legislature. The High Court got carried away by the issue of guarantee and guarantor's liability and thus has overlooked the true intent and purport of Section 138 of the Act. Therefore, the matter requires consideration. Hence, this application seeking leave to appeal is allowed. 7. Registry is directed to register the application as an appeal. 8. Upon registration of the appeal, Admit. 5 crapn2440.10 9. Learned Counsel for the respondents waives service of admission of appeal. [ S.S. SHINDE, J.] sut/feb11/crapn2440.10