1 W.P. NO.2354-10 sas IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL WRIT PETITION NO.2354 OF 2010 Gurbindersingh Manmohansingh Longia ..Petitioner. V/s. M/s. Shriram City Union Finance & Ors. ..Respondents. Mr. S.G. Kudle for petitioner. Dr. Saikumar Pathrudu for respondent No.1. Dr. F.R. Shaikh, A.P.P. for respondent-State. CORAM : A.M. KHANWILKAR AND U.D.SALVI, JJ. DATED : 14TH SEPTEMBER, 2010 P.C. :- 095 1. Heard learned counsel for the parties. By this petition, the petitioner prays for quashing of the proceedings instituted by the respondent No.1 against the petitioner for offence punishable under section 138 r/w. 142 of the Negotiable Instruments Act. 2. The first argument canvassed before us is that the fact that the respondent No.1 has terminated the agreement executed between the respondent No.1 and the petitioner on 14/10/2009 has 2 W.P. NO.2354-10 not been disclosed in the complaintwhich has been filed. It is further contended that the said communication records the fact that an amount of Rs.2,33,070/- was payable by the petitioner towards full and final settlement of the loan amount, failing 095which the petitioner will be liable to pay interest and penal charges. According to the petitioner, this material fact has not been disclosed in the complaint. We fail to understand as to how this fact can be the basis to quash the criminal complaint filed by the respondent No.1. Non disclosure of that fact cannot defeat the cause of action which has arisen to the respondent No.1 on account of dishonour of the cheque, which is an offence stipulated under Section 138 of the Negotiable Instruments Act. Suffice it to say that non disclosure of the termination letter dated 14/10/2009 in the complaint cannot be the basis to quash the criminal action against the petitioner. 3. It is then contended that if the agreement was terminated on 14/10/2009, the respondent No.1 could not have utilized the post dated cheque given by the petitioner. This post dated cheque which is the subject matter of the criminal action is dated 06/02/2010 and the same has been dishonoured on 13/02/2010. The argument clearly overlooks the terms of the agreement executed between the petitioner and the respondent No.1. On conjoint rea095ding of the relevant clauses 1.9, 1.10 (iii) and Article 6.1 ((vi), it appears that the 3 W.P. NO.2354-10 respondent No.1 could have legitimately realized the post dated cheques for recovering the outstanding amount towards the loan account. In our opinion, this argument cannot be the basis for quashing of the action initiated by the respondent No.1. 4. It was lastly contended that the notice which is a pre- condition for institution of criminal action under Section 138 of the Negotiable Instruments Act has not been served on the petitioner. The respondent in the complaint on the other hand has asserted that notice has been duly served on the petitioner. That is a matter which will have to be inquired into by the trial Court after recording of evidence. Once again that cannot be the basis for quashing of the action initiated by the respondent No.1. Taking overall view of the matter, we find no merit in the petition. The same is dismissed. 5. We however, clarify the opinion recorded in this order is only to consider the prayer for quashing of the criminal complaint and the trial Court shall not be influenced by the same. Instead, the trial Court will have to decide the proceedings before it on its own merits and in accordance with law. (U.D.SALVI, J.) (A.M. KHANWILKAR, J.)