1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE SIDE CRIMINAL APPLICATION NO.4014 OF 2009 Shri Balasaheb Sayaji Thombre : Applicant (Orig. Accused) V/s. Smt.Sunanda Manikrao Thorat & Anr. : Respondents .... WITH CRIMINAL APPLICATION NO.4015 OF 2009 Shri Balasaheb Sayaji Thombre : Applicant (Orig. Accused) V/s. Smt.Sunanda Manikrao Thorat & Anr. : Respondents .... WITH CRIMINAL APPLICATION NO.4016 OF 2009 Shri Balasaheb Sayaji Thombre : Applicant (Orig. Accused) V/s. Smt.Sunanda Manikrao Thorat & Anr. : Respondents .... WITH CRIMINAL APPLICATION NO.4017 OF 2009 Shri Balasaheb Sayaji Thombre : Applicant (Orig. Accused) V/s. 2 Shri Tukaram Kashinath Mandale & Anr. : Respondents .... WITH CRIMINAL APPLICATION NO.4018 OF 2009 Shri Balasaheb Sayaji Thombre : Applicant (Orig. Accused) V/s. Shri Tukaram Kashinath Mandale & Anr. : Respondents .... WITH CRIMINAL APPLICATION NO.4019 OF 2009 Shri Balasaheb Sayaji Thombre : Applicant (Orig. Accused) V/s. Shri Tukaram Kashinath Mandale & Anr. : Respondents .... WITH CRIMINAL APPLICATION NO.4020 OF 2009 Shri Balasaheb Sayaji Thombre : Applicant (Orig. Accused) V/s. Shri Chandrashekhar Shivajirao Pawar & Anr. : Respondents .... WITH CRIMINAL APPLICATION NO.4021 OF 2009 Shri Balasaheb Sayaji Thombre : Applicant (Orig. Accused) 3 V/s. Shri Chandrashekhar Shivajirao Pawar & Anr. : Respondents .... AND CRIMINAL APPLICATION NO.4022 OF 2009 Shri Balasaheb Sayaji Thombre : Applicant (Orig. Accused) V/s. Shri Chandrashekhar Shivajirao Pawar & Anr. : Respondents .... Mr.S.K.Shinde for the applicant. Mr.Subhash Jha i/b.Mr.Bimal N. Bhabhda for respondent no.1. Mr.A.P.Adsule, Addl. Public Prosecutor for State in Cri. Application Nos. 4014 to 4018 of 2009. Ms P.P.Shinde, Addl. Public Prosecutor for State in Cri. Application Nos. 4019 to 4022 of 2009. .... CORAM : B.R. GAVAI, J. DATE : MARCH 18, 2010. P.C.: By way of the present applications, invoking the inherent powers of this Court under section 482 of the Code of Criminal Procedure, the applicant prays for quashing and setting aside the order issuing process passed by the learned Chief Judicial Magistrate, Nasik, in Criminal Cases mentioned in prayer clause (b) of the applications. 4 2. This is the second round of litigation before this Court after the earlier round has travelled from the learned trial Court to the apex Court. 3. The applicant-accused and the respondent no.1-complainants in all the cases were Directors of one private limited company, viz., M/s.Kibs Biotechnology Ltd. However, it appears that an understanding was arrived at between the applicant and the three complainants that the complainants would not continue in the said company and their shares would be transferred to the applicant. It was also agreed that the amount towards transfer of the shares held by the complainants was to be paid by the applicant-accused to the complainants. It was further agreed that the cheques for paying the amount towards transfer of shares were to be deposited with Vilas Deshmane who was to hand over the same to the complainants two days prior to the date written on the said cheques. It was agreed that Share Certificates along with Transfer Forms duly signed by the complainants were to be deposited with Vilas Deshmane. It appears that before the due dates the cheques were handed over to the complainants and the complainants presented the same to the Bank. However, the cheques were dishonoured since there were no sufficient funds in the account of the accused. Though a statutory notice under section 138 came to be issued to the accused, the same was not replied. Since the accused failed to comply with the statutory notice within the 5 prescribed period, the complaints came to be filed. 4. The learned Magistrate initially issued process in all the complaints. The said order came to be challenged before the learned revisional Court. The learned Ad hoc Addl. Sessions Judge-2, Nasik, vide order dated 30.6.2008 set aside the order issuing process. The respondent no.1-complainants filed Criminal Writ Petitions before this Court. All the said petitions were allowed and the order issuing process was maintained. It appears that against the said judgement and order, the applicant went before the apex Court. The apex Court vide order dated 15.7.2009 dismissed the Special Leave Petitions, granting liberty to the present applicant to file an appropriate application before this Court which was to be considered and disposed of on its own merits. 5. Mr.Shinde, the learned counsel appearing on behalf of the applicant, submits that in view of the liberty granted by the apex Court and further in view of the subsequent event of exhibiting Memorandum of Understanding in the examination-in-chief of the complainants, the present proceedings are filed under section 482. The learned counsel submits that in view of the Memorandum of Understanding, the cheques were paid towards the transfer of shares. He submits that unless shares are transferred, there is no legal liability to make the payment and, as 6 such, the complaints under section 138 itself are not tenable. 6. Mr.Zha, the learned counsel appearing on behalf of the respondent no.1-complainants, submits that in an earlier round of litigation, this Court has considered all aspects of the matter and after considering the same, has held that the order of issuance of process warranted no interference and the learned revisional Court has erred in quashing and setting aside the order issuing process. He, therefore, submitted that there is no merit in the applications and the same are liable to be dismissed. 7. While considering the applications under section 482 for quashing of proceedings, the Court is required to see the averments in the complaints so as to find out as to whether the complaints prima facie disclose ingredients to constitute an offence complained of or not. Though this Court expressed this aspect of the matter and indicated to the applicant that prima facie, the averments in the complaints were sufficient so as to constitute an offence complained of, at the insistence of the applicant, the Court was required to examine the merits of the contention and go into the Memorandum of Understanding on which the applicant placed reliance. 8. The relevant clauses of the Memorandum of Understanding read 7 thus: “8. For payment of the amounts towards the shares and unsecured loans as above, Mr.Thombre has given cheques for the above amounts of the above dates. Since there are no money in the accounts all the cheques are kept with Mr.Vilas Deshmane as a Trustee. Mr.Vilas Deshmane has to handover the cheques to the concerns on or before two days of the date of cheques. It has been agreed that for any reason on the date of the cheque if the amount in the account will not be sufficient further grace period of 15 days will be given to Mr.Thombare to arrange sufficient account and deposit in the account to realise cheques. 8. All the share certificates with duly signed share transfer forms in respect of the share held by Mr.Pawar, Mrs.Thorat and Mr.Mandale in M/s.Kibs BioTechnology Limited are to be deposited by Mr.Pawar, Mrs.Thorat and Mr.Mandale with Mr.Vilas Deshmane as a Trustee and after realization of the last cheques, Mr.Vilas Deshmane will handover all the share certificates with share transfer form of Mr.Pawar, Mrs.Thorat and Mr.Mandale to Mr.Thombre for transferring the same in his own name or any other one or more persons as per his wish. 8 9. After realisation of all cheques given as above, all rights of Mr.Pawar, Mrs.Thorat and Mr.Mandale as regards to M/s.Kibs BioTechnology Limited will cease to exist and they will not be having any rights, title, interest or claim over the property of M/s.Kibs BioTechnology Limited.” 9. It can thus clearly be seen that as per the said Memorandum of Understanding, the cheques for the amount payable by the accused to the complainants towards transfer of shares were to be deposited with Deshmane. Said Mr.Deshmane was required to hand over the cheques to the complainants on or before two days before the date of the cheques. An enabling clause was there so as to extend the period for a period of 15 days in order to enable the present applicant to arrange for the funds. It was further agreed that the share certificates were to be handed over by the complainants to said Mr.Deshmane. It is further to be noted that only upon all the cheques being honoured and the payment realised, the share certificates and transfer forms were to be handed to the accused by Mr. Deshmane. 10. It is not the case of the applicant that the complainants have not deposited the Share Certificate with said Mr.Deshmane. It is the 9 contention of the applicant that the amount is payable only after shares are transferred. Upon a bare reading of the said M.O.U., the contention is without any basis. As per the said M.O.U., the cheques were to be handed over to the complainant by Deshmane two days prior to their due date. It can further be seen that it is only after realisation of the said cheques, the share certificates were required to be handed over to the applicant-accused for transferring the shares in his name. In that view of the matter, prima facie, I find that the contention raised by the applicant regarding the interpretation of the said document is totally erroneous. 11. As observed hereinabove, on a bare perusal of the complaints, I find that necessary averments so as to constitute an offence under section 138 of the Negotiable Instruments Act are very much present in the complaints. Whether the averments are true or false would be a matter of defence for the applicant in the trial. However, at the insistence of the applicant, the Court is required to consider the said document, though normally, this Court would not go into the question regarding the defence of the accused which he is entitled to raise at the stage of trial. 12. In that view of the matter, I do not find any merit in the applications. The applications are, therefore, dismissed, being without any merit. Needless to state that the observations made by this Court are 10 upon prima facie interpretation of the document submitted by the complainants and that too at the insistence of the applicant. However, the learned trial Court would not to be influenced by the said observations at the stage of trial. B. R. GAVAI, J.