appln4105-09.sxw jpc IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL APPLICATION NO. 4105 OF 2009 Motorol Speciality Oils Ltd. & others .. Applicants Versus BFIL Finance Ltd. & others .. Respondents Mr. Prakash Naik for the Applicants Mr. Sendeep Velekar a/w Mangesh Bhole and Ms. Shweta Bhangale i/by Mulla & Mulla & CBC for Respondent No.1 Ms. M.R. Tidke, APP for the State CORAM : J.H. BHATIA, J. DATE : 21st April, 2011. P.C.: 1. Heard. 2. As per the settlement in Company Petition No. 26 of 2001 before the Gujarat High Court, the applicants-accused issued two cheques, dated 1.8.2001 and 1.11.2001 for Rs.4,92,826/- each. On presentation of the cheques for encashment, both the cheques were dishonoured for want of sufficient funds. Inspite of service of statutory notice, the applicants failed to make the payment and therefore, the complainant filed a complaint being Criminal Case No. 647/SS/2006 before the learned Metropolitan Magistrate, 33rd Court Ballard Pier, Mumbai. 3. It is the contention of the applicants that as per the Order of the Company Court, if there was any failure in making payment, the original execution proceedings and criminal proceedings could review and, therefore, no fresh proceedings 1 appln4105-09.sxw under section 138 of the Negotiable Instructions Act is permissible. On the other hand, it is contended by the leanred counsel for the complainant- respondent no.1 that the case under section 138 was filed in the year 2002 and this application to quash has been filed in the year 2009 i.e. after about seven years. Earlier revision application was rejected by the Sessions Court. 4. It may be noted that when questioned to the learned counsel for the applicants as to whether they are willing to make the payment of cheques, the learned counsel informed that they are not in position to make the payment. It appears that applicants want to take benefit of the High Court order but do not want to comply with the same. In the Company Petition, it was observed by the Gujarat High Court that if there is any default in making payment, the original execution proceedings and criminal proceedings will revive and the compromise would not be binding. However, in the present case, it was not a mere non payment of the amount as per that Court order. The applicants had issued fresh cheques for discharge of their legally enforceable liability and those cheques were dishonoured and, therefore a fresh cause of action arose under section 138 of the N.I. Act. Thus, I find no substance in the present application to quash the proceeding under section 13 of the N.I. Act. In the result, the application stands dismissed. ( J.H. BHATIA, J. ) 2