vss IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION APPEAL NO.14 OF 2008 APPEAL NO.14 OF 2008 APPEAL NO.14 OF 2008 IN COMPANY PETITION NO.487 OF 2007 Vaishnavi Rasyan Pvt. Ltd. ... Appellant V/s. Ms.Asha Suresh Verma ... Respondent Mr.Piyush Shah for Appellant Mr.U.J. Shah a/w C.N. Mehta for Respondent CORAM: S.B. MHASE & S.B. MHASE & S.B. MHASE & SMT.NISHITA SMT.NISHITA SMT.NISHITA MHATRE, JJ. MHATRE, JJ. MHATRE, JJ. DATED: JULY 8, 2008 JULY 8, 2008 JULY 8, 2008 P.C.: P.C.: P.C.: . Heard. The order dated 7.12.2007 in the company petition No.487 of 2007 is under challenge. The respondent is a creditor and she entered into a transaction with the appellant for Rs.25 lacs and, therefore, the respondent has filed the present petition for starting liquidation proceedings. The learned Single Judge has admitted the petition for liquidation and directed publication of advertisement in two local newspapers i.e., Free Press Journal and Navshakti and in Maharashtra Government Gazette and also directed to deposit an amount of Rs.10,000/- towards the publication within three weeks from the date of the order. The said order is challenged in this appeal. : 2 : 2. The contention of the appellant is that the amount of Rs.25 lacs is not an admitted amount. It is the cheque that was given as against the goods delivered and therefore, unless the claim is settled and adjudicated in a proceeding under section 138 of the Negotiable Instruments Act initiated by the respondent, the company petition is not maintainable. In our view, filing of a complaint under section 138 has nothing to do with a Company Petition. The Company Petition is an independent remedy available to the creditor. The criminal matter will proceed in accordance with the criminal law. Secondly, when the cheque has been issued by the appellant, there is a presumption in favour of the respondent that it is given for a consideration under section 118 of the Negotiable Instruments Act. Apart from this, there is a letter on record at Exhibit A dated 26.7.2006 issued by the present appellant admitting that an amount of Rs.25,59,981.64 was payable to the respondents after finalising accounts towards the raw material supplied and the finished products sold to various clients on instructions from the respondents vide their letter dated 18.7.2006. Accordingly, a cheque for the aforesaid amount was enclosed with the letter and this cheque was to be replaced on every supply/monthly/accounting with a new cheque for the figures arrived at on that date. : 3 : 3. Thus, after settlement and finalisation of the accounts, the cheque was issued. Under these circumstances, we find that the appellant was having no capacity to make the payments of the creditors and, therefore, the action by the learned Single Judge to initiate proceedings is just and proper. 4. No interference is called for. Appeal dismissed. (NISHITA MHATRE, J.) (S.B. MHASE, J.)