1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL WRIT PETITION NO. 1227 OF 2010 IN REVISION APPLICATION NO.13 OF 2008 IN R.C.C. NO.127 OF 2007 Anand Pandurang Dudhal & Ors. .... Petitioners. V/s Deepak Shivaji Pawar & Ors. .... Respondents. Mr. P.R. Naidu for the Petitioners. Mr. J.P. Kharge, APP for the State. CORAM: V. M. KANADE, J. DATE : 8TH JUNE, 2010 P.C.:- 1. Heard the learned Counsel appearing on behalf of the Petitioners and the learned APP appearing on behalf of the State. 2. Petitioners, by this Petition, are challenging the order passed by the Court of Sessions dated 16/01/2010 in Revision Application No. 13 of 2008 in R.C.C. No.127 of 2007 pending in the Court of the learned J.M.F.C., Vai. The Respondent No.1 herein filed a complaint against the 2 Petitioners herein in the Court of J.M.F.C., Vai vide Regular Criminal Case No.127 of 2007 and alleged that Petitioners have committed offence punishable under sections 403, 406, 409, 418, 422, 120-B read with section 34 of the Indian Penal Code and section 138 of the Negotiable Instruments Act. The learned Magistrate was pleased to issue process for the offence punishable under sections 409, 418, 420, 422 read with section 34 of the Indian Penal Code and under section 138 of the Negotiable Instruments Act. Being aggrieved by the said order, Petitioners preferred a Revision Application in the Court of Sessions which was also dismissed by the Sessions Court by its judgment and order dated 16/01/2010. 3. The learned Counsel for the Petitioners submitted that there was no existing debt and liability on the date of issuance of the statutory notice by the respondent No.1 – complainant and, as such, the said complaint itself was not maintainable. He submitted that the complainant had accepted amounts of Rs 68,743/-, Rs. 25,000/- and Rs 10,000/- from the Credit Society and had signed receipts dated 26/02/2005, 13/04/2005 and 05/06/2006. It is submitted that no reasons have been assigned by the learned Magistrate while issuing process. He further submitted that, in the complaint, the Respondent No.1 has admitted that Fixed Deposit Receipts were given by the Petitioners to him. He submitted that the entire amount was repaid on various dates before issuance of statutory notice and filing of the complaint. 3 4. In my view, there is no substance in the submissions made by the learned Counsel appearing on behalf of Petitioners. Perusal of the complaint clearly discloses that even after payment of the said amount, further amount was due and payable and, therefore, for the purpose of repaying the said amount, the accused Nos.1 and 2 handed over the complainant a cheque of Rs 95,850/- drawn on Mumbai District Central Co-operative Bank Ltd., Dadar Branch, Mumbai duly signed by accused No.2. In para 11 of the complaint, there is specific averment that when this cheque was deposited, it was dishonoured and returned to the complainant with the cheque return memo bearing remark “Funds insufficient”. Thereafter, part-payment was made by the accused as averred in para 12 of the complaint. However, balance amount of Rs 55,000/- was not paid with interest of Rs 13,743/-, the total amount being Rs. 68,473/-. This amount was not paid and, therefore, accused handed over to the complainant a cheque dated 68,743/- drawn on IDBI Bank dated 24/05/2006 signed by accused No.1 as a Managing Director of the Credit Society. This cheque was deposited by Respondent No.1 in his bank at Vai which was also dishonoured and returned to the complainant on 09/06/2006 alongwith cheque return memo of IDBI Bank with the remark “Account Closed”. Thereafter, statutory notice was issued by Respondent No.1 dated 14/6/2006 which was served on the accused. 4 5. In view of the specific averments made by the complainant in the complaint, submission made by the learned Counsel appearing on behalf of the Petitioners that the entire amount was paid to the complainant before issuance of the statutory notice is patently incorrect. The learned Counsel for the Petitioners, in my view, tried to mislead the Court by pointing out receipts towards payment of certain amounts after the first cheque issued by the accused was dishonoured. The contention of the learned Counsel for the Petitioners, therefore, cannot be accepted in view of the specific averments made in the complaint. No other point was urged by the learned Counsel for the Petitioners. Hence, no case is made out for interfering with the order of issuance of process by the learned Magistrate and which order has been confirmed by the Sessions Court. The Sessions Court in its order has also observed that the applicants and their advocate were consistently absent and, therefore, the learned Sessions Judge was constrained to decide the Revision Application on merits. Writ Petition is, therefore, dismissed. (V.M. KANADE, J.) 5