IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION WRIT PETITION NO. 2162 OF 2007 AND WRIT PETITION NO. 2182 OF 2007 ABK Enterprises Pvt. Ltd. (W.P.No.2162/07) Ajit B. Kerkar (W.P.No.2182/07) ... ......Petitioners V/s Trade-Wings Hotels Ltd. & Ors... ...... .....Respondents. Mr.Aspi Chinoy, Sr. Counsel, Mr.Subhash Jha and Ms.Boski Sharma i/by M/s.Paras Kuhad & Associates, Adv. For petitioner in W.P.No.2162/07. Mr.Shirish Gupte, Sr. Adv. I/by Mr.Rajesh Mirchandani, Adv. For the petitioner in W.P.No.2182/07. Mr.Haresh Jagtiani with Mr.Tejas Bhatt and Mr.Anil D' Souza i/by M/s.Haresh Jagtiani & Associates, Adv. For the respondent No.1. Mr.Y.M.Nakhwa, APP for the State. CORAM: A.P.DESHPANDE, J. 25/2/08 PC: The present petitioners are the original accused in the complaint filed by respondent under section 138 read with section 141 of the Negotiable Instruments Act. The trial Court being of the view that a prima facie case is made out for issuing process, issued the process. Aggrieved thereby the present petitioners/accused questioned the legality and propriety of the said order by filing revision before the Sessions Judge. The learned Sessions Judge has 1 concurred with the view taken by the trial Court and dismissed the revision. Hence these writ petitions are filed. 2. Perusal of the complaint reveals that the respondent- complainant is a Company incorporated under the Companies Act and carries on business of hotel and restaurants. The accused No.1 is a private limited company of which accused No.2 is a Director and authorized signatory of the cheque in question issued by accused No.1. It is averred that accused No.2 is in-charge of the company and is responsible for the day-to-day affairs of the company. A Memorandum of Understand (MOU) dated 25.4.2000 was entered into between accused No.2 acting on behalf of Tulip Hotels Private Limited and Dr.Shailendra Mittal where under accused No.2 had agreed that Tulip Hotels Private Limited will buy 50% of the equity capital of the complainant by itself of through its nominee within 135 days from the date of taking over of the Management by the joint venture of “Bagmola Beach Resort” consisting of Tulip Hotels Pvt. Ltd. and Trade-Wings equally. The Management of the hotel was handed over on 15.6.2006. A shareholders agreement was entered into. Under the MOU the price of equity shares of the complainant was agreed to be in the range of 27 to 30 crores and Tulip Hotels Pvt. Ltd. agreed to purchase 50% of the equity capital of the complainant through itself or its nominee. Towards the payment of consideration accused No.2 had issued a cheque on behalf accused No.1 to the complainant for the sum of Rs.9,79,l70,000/- towards part payment of 50% of the equity capital as agreed under the MOU. 2 The said cheque dated 1.11.06 was drawn on Industrial Bank of India Limited. Cheque was deposited by the complainant with the complainant's banker viz. National Cooperative Bank on 31.10.06 after the banking hours and it was presented to the bankers of the accused on 1.11.06. A fax letter was received on 31.10.06 from the accused by the complainant requesting him not to deposit the cheque because of difficulty in arranging the funds. 3. In the above set of facts the cheque came to be dishonoured and hence after giving notice under section 138 read with section 141 of the Negotiable Instruments Act complaint came to be filed. The main submission on behalf of the petitioners is that the complainant had issued notice at later point of time revoking/terminating MOU with effect from 1.11.06 and hence there were no legally recoverable dues in existence on 1.11.06. Subsequently a civil suit is also filed by the complainant. The issue as to what would be the effect of the termination of the MOU cannot be decided at this stage. Whether present petitioners can seek specific performance of the MOU or as to whether the MOU would stand terminated absolving the parties of their obligation thereunder cannot also be gone into at this stage. As the cheque had been issued by the accused, a presumption arises in favour of the complainant that the said cheque was issued for legally enforceable debt or liability. The presumption is available to the complainant under section 139 read with section 118 of the Negotiable Instruments Act. As stated herein above the effect of post-facto termination of MOU in the circumstances arising in the 3 present case involves disputed questions of fact which are not capable of being adjudicated without any evidence. Perused the order passed by the Sessions Judge. Same takes a possible view of the matter and does not call for any interference in exercise of writ jurisdiction. In the result writ petitions are summarily dismissed. 25.2.08 4