1 mpt IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL WRIT PETITION NO. 1625 OF 2009 B.M.Hussain ... Petitioner versus State of Maharashtra & Anr ... Respondents ... Mr.Vivek Kantaria with Mr.Vivek Sharma i/b Mr.Rahul Karnik for the petitioner. Mrs.Mallika Ingale for respondent no.2. Ms.A.T. Jhaveri, APP for the State. CORAM : D.G. KARNIK, J. DATED : 12th November 2009 P.C. 1. Heard, 2. By this application, the applicant takes exception to the order dated 12th March 2009 passed by the Metropolitan Magistrate, 43rd Court, Borivali, Mumbai, issuing process u/s.138 of the Negotiable Instruments Act. 2 3. A memorandum of understanding (MOU) was entered into between the parties on 30th June 2004, terms of which were modified by another MOU dated 25th July 2006. Two cheques of Rs.25 lakhs was issued by the petitioner to the respondent in terms of clause (4) of the MOU. When these cheques were presented for payment, they were dishonored and after issuance of the necessary notice, the respondent no.2 filed a complaint against the petitioner u/s.138 of the Negotiable Instruments Act before the Metropolitan Magistrate, 43rd Court, Borivali Mumbai. After recording the verification, the Magistrate issued the process. 4. Learned counsel for the petitioner submitted that by a notice dated 29th march 2007, both the MOUs were terminated and therefore, amount of the cheques were not due and there was no legally enforceable liability. Hence, the Magistrate ought not to have issued the process. He further submitted that the alleged liability of the petitioner to pay the amount was already a subject matter of a civil suit pending between the parties. In the circumstances. the Magistrate ought not to have issued the process. In support, he referred and relied upon a decision of the Gujarat High Court in Shanku Concretes Pvt.Ltd. & Ors. Vs. State of Gujarat 1999-(CR2)-GJX-982-GUJ and the decision of a Single Judge of this Court in Subhash Chintaman Patil Vs. Sumer Singh N. Champavat & ors. (Criminal Application No.2460 of 2008 decided on 27th February 2009). 5. So far as the decision of this court in Subhash Patil's case is concerned, it does not support the contention of the petitioner. After analyzing the facts of this case, the court has observed : 3 "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." Thus, this court on facts held that the view taken by the Magistrate in that case was a possible view on facts. In my view, therefore, that decision does not further the case of the petitioner. 6. In the present case, admittedly, the MOU provided for the payment to be made by the petitioner to the respondent no.2. Petitioner had issued two cheques of Rs.25 lakhs each in pursuance of the MOU. Whether the MOUs were validly terminated or not and whether there was no legal liability of the petitioner to pay any amount to the respondent no.2 is a question of fact which is required to be decided at trial. Merely because the petitioner has disputed the liability, it cannot be said that the Magistrate ought not to have issued the process and relegated the parties to a civil suit. Apart from the fact that section 139 r/w section 118 of the Negotiable Instruments Act raises a presumption of consideration, admittedly, in the present case, the cheques were issued in pursuance of the memorandum which creates liability. The view taken by the Magistrate that the respondent no.2 had a prima facie made out that the petitioner had committed an offence punishable u/s.138 of the Negotiable Instruments Act requiring issuance of a process, is an eminently possible view. 4 7. The decision of the Gujarat High Court in Shanku Concretes Pvt.Ltd. is not applicable to the facts of this case in as much, as at the prima facie stage, the Magistrate was entitled to take a view that the amount was payable and/or ingredients of an offence u/s.138 had been prima facie made out requiring issuance of a process. 8. Petition is accordingly dismissed summarily. 9. It is clarified that all observations made here are prima facie and the Magistrate shall not in any way be influenced by any of the observations at the stage of trial. (D.G. KARNIK,J.)