IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL APPLICATION NO.2460 OF 2008 WITH CRIMINAL APPLICATION NO.2461 OF 2008 WITH CRIMINAL APPLICATION NO.2462 OF 2008 WITH CRIMINAL APPLICATION NO.2463 OF 2008 Subhash Chintaman Patil .. Applicant (In all the applications) Versus Sumer Singh N. Champawat & Ors. .. Respondents (In all the applications) Mr.S.S.Redekar for the applicant. Mr.R.S.Singh for respondent nos.1 and 2. Mr.J.P.Yagnik, A.P.P for the State. CORAM CORAM CORAM : A.S.OKA, J. : A.S.OKA, J. : A.S.OKA, J. DATE DATE DATE : 27th February 2009. : 27th February 2009. : 27th February 2009. P.C.: . Heard the learned advocate appearing for the applicant. These are the applications filed under sub section 4 of section 378 of the Code of Criminal Procedure, 1973. The applicant filed four separate complaints under section 138 of the Negotiable Instruments Act, 1881. According to the case made out by the applicant in the complaints, the cheques were issued by the respondent-accused in discharge of liability of the payment of certain amounts under the memorandum of understanding dated 16th August 2005. (2) Under the said memorandum of understanding, the members of the family of the applicant agreed to sell certain immovable property in favour of the accused. The finding recorded by the learned trial Judge is that the amount payable under the dishonoured cheques had not become payable under the terms and conditions of the memorandum of understanding. The memorandum of understanding provides that the price of Rs.04,10,89,776/- was agreed which was to be paid as provided in clause (1) thereof. A sum of Rs.6 lacs was paid prior to the execution o the memorandum. The first instalment of Rs.01,99,44,888/- being 50% of the consideration amount after deducting token amount of Rs.6 lacs was payable within one month from the date of execution of the memorandum of understanding but subject to clear and marketable title of the property as well as only after releasing the said property from the clutches of ULC Authority as well as the State Government. The learned Judge found that the said 50% amount had not become payable as the property was not released by the State Government as well as by the ULC Authorities. 2. The learned counsel appearing for the applicant submitted that the evidence on record shows that the accused had taken over the responsibility of procuring necessary clearances and had accordingly made (3) applications in that behalf. He submitted that very fact that a sum of Rs.32 lacs over and above the initial payment of Rs.6 lacs was paid by the accused shows that the parties never intended to act upon sub-clause (b) of clause (1) of the memorandum of understanding dated 16th August 2005. 3. I have carefully considered the submissions. Sub-clauses (a) and (b) of clause 1 of the said memorandum of understanding read thus: "1) The vendors have agreed to sell and the purchaser have agreed to purchase the said property at the lumpsum price of Rs.4,10,89,776/- (Rupees Four Crores Ten Lakhs Eighty Nine Thousand Seven Hundred Seventy Six Only) and the said amount shall be paid in the following manner: a) Rs.6,00,000/- (Rupees Six Lakhs only) has paid by the purchasers of the vendors prior to the execution of this memorandum of understanding and the vendors have given authority to fix up the name board of the purchasers over the said property and carry out survey and fix up boundary over the said (4) property. b) Rs.1,99,44,888/- (Rupees One Crore Ninety Nine Lakhs Fourty Four Thousand Eight Hundred Eighty Eight only) 50% amount out of total consideration amount after deducting above referred token amount of Rs.6,00,000/- shall be paid by the purchasers to the vendors within one month from the date of execution of this memorandum of understanding but subject to clear and marketable title of the said property as well as only after releasing the said property from the clutches of the ULC authority as well as State Government of Maharashtra and not before that." 4. The balance payments in terms of sub-clauses (c) and (d) of clause (1) were to be made within certain time after the payment covered by clause (b) was made. There is nothing in the memorandum of understanding to show that the permission/clearance was to be obtained by the accused. The clause (b) specifically provides that the amount payable therein was not payable before the property was released from the clutches of ULC Authority as well as the State Government. There is nothing (5) placed on record to show that clearance was obtained from the ULC Authorities as well as from the State Government. In fact the learned Judge has noted that the complainant in his cross examination admitted that the property was still reserved by the State Government and the name of the Government of Maharashtra appears in the 7/12 extract. 5. Therefore, the view taken by the learned trial Judge that the amount payable under the cheques subject matter of these complaints had not become payable on the date on which the same were dishonoured is certainly a reasonable and possible view which could have been taken on the basis of material on record. 6. In the circumstances, no case is made out for interference. Applications for leave are rejected. It is made clear that the observations made in this order are only for limited purpose of considering the prayer for grant of special leave to prefer an appeal. None of the observations made herein shall be construed as any finding on the rights and liabilities of the parties. The rights and liabilities of the parties will be naturally decided in appropriate proceedings. (6) (A.S.Oka,J)