1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE SIDE, BENCH AT AURANGABAD CRIMINAL WRIT PETITION NO.686 OF 2009 Shivaji Vitthalrao Gadekar ..petitioner versus The State of Maharshtra & anr. ..Respondents WITH CRIMINAL WRIT PETITION NO. 687 OF 2009 Vilas Shivaji Gadekar ..Petitioner versus The State of Maharashtra & anr. ..Respondents ----- Shri A.L.Tikle, Advocate, holding for Shri V.D.Salunke, Advocate for the writ petitioners. Shri B.V.Wagh, A.P.P. for Respondent No.1-State. Shri P.R.Patil i/by Shri R.V.Naiknaware, Advocate for Respondent No. 2. ---- Coram : P. R. Borkar, J. Date : Decembere 2, 2009. P. C. 01. Rule. By consent, rule made returnable forthwith and the writ petitions are heard and disposed of at the admission stage itself. 2 02. These are the two writ petitions filed by father and son respectively for quashing FIR in Crime Nos. 4 of 2009 and 3 of 2009 filed on 10.6.2009 and registered at Tamalwadi Police Station, Taluka Tuljapur, District Osmanabad for offences punishable under Sections 403, 420, 465, 467, 468, 471 of Indian Penal Code. Santosh Ramdas Bobade is Respondent No. 2 in both the writ petitions, whereas Respondent No.1 is the State of Maharashtra. 03. Both the petitions present identical question of facts and law. It is the case of the petitioners that they are the residents of Kallam, District Osmanabad. They are contractors by profession. Respondent No.2 Santosh approached them with a request to carry out one work with him as he had no machinery like JCB, Pocklen, Tippers, Roller, Tanker etc. Accordingly, on the request of Respondent No.2, the petitioners agreed to work for him as per oral contract between the parties, since the petitioners owned such machineries and equipments and as they had credit with traders in steel, cement, sand etc. About 75 per cent of work was carried out by both the petitioners and amount of Rs.63.00 lakhs was invested by both of them towards labour payment, 3 purchase of sand, cement, rent of machineries hired etc. It is further stated by the petitioners that they demanded the said amount from Respondent No.2 in presence of witnesses and accordingly, Respondent No. 2 issued two cheques in their favour, one for Rs.33.00 lakhs bearing No.4853 and another for Rs.30.00 lakhs bearing No.4852 on 25.3.2009. However, when the petitioners presented the said cheques in the Bank of Maharashtra, Kallam, those were bounced. The petitioners, therefore, issued notice to Respondent No.2 calling upon him to pay the amount and on refusal by Respondent No.2, they filed cases in the court of Judicial Magistrate, First Class, Kallam, under Section 138 of the Negotiable Instruments Act against Respondent No.2. Complaint filed by Shivaji who is petitioner in Criminal Writ Petition No.686 of 2009 was numbered as S.C.C. No. 237 of 2009,whereas the complaint filed by Vilas who is petitioner in Criminal Writ Petition No.687 of 2009 was numbered as S.C.C.No.236 of 2009. 04. It is further case of the petitioners that in order to give counter blast to above criminal cases filed by them against Respondent No.2, Respondent No. 2 lodged false complaints against them 4 in the court of Judicial Magistrate, First Class, Tuljapur, bearing R.C.C. Nos. 123 of 2009 and 122 of 2009 and the learned Magistrate passed orders thereon for investigation under Section 156(3) of the Code of Criminal Procedure, 1973 and Crime Nos. 4 of 2009 and 3 of 2009 were registered against petitioners in criminal writ petition No.686 and 687 of 2009 respectively with Tamalwadi Police Station. It is alleged in the said F.I.R. that present Respondent No. 2 had lost two cheques on 12.11.2003 and therefore he filed application regarding loss of cheques on 13.11.2003 with Branch Manager, Osmanabad District Central Cooperative Bank,Branch Sawargaon by which those cheques were issued. Account of Respondent No. 2 in the said bank was closed on 11.11.2007. The alleged cheques, as per the case of the petitioners, were issued on 25.3.2009 and those were presented on 26.3.2009. They were dishonoured on the ground that the account was closed. On 30.4.2009, the petitioners issued notice to Respondent No.2. On 10.6.2009 F.I.Rs. against the petitioners were registered with Tamalwadi Police Station. On 11.6.2009 present Petitioners filed complaints under Section 138 of the Negotiable Instruments Act in the court of Judicial Magistrate, First Class, Kallam. 5 05. It is the case of the present petitioners that the F.I.Rs. registered at the instance of present Respondent No. 2 against them were false and those were filed as a counter blast to the complaints of the petitioners under Section 138 of the Negotiable Instruments Act. In such circumstances, present writ petitions are filed by them with following prayers in respect of Crime Nos. 3 of 2009 and 4 of 2009. Prayers being identical, except for change in respect of crime numbers, prayers only from Writ Petition No.686 of 2009 are quoted. "B. The FIR bearing Crime No. 4 of 2009 dt. 10.6.2009, registered at Tamalwadi Police Station, Tq. Tuljapur, Dist. Osmanabad U/Sec.403, 420, 465, 467, 468, 471 of I.P.C. may kindly be quashed and set aside. "C. Pending hearing and final disposal of this Petition the Respondent may kindly be directed to stay the further proceeding in pursuance to the F.I.R. No.4 of 2009, registered at Tamalwadi Police Station, Tq. Tuljapur, Dist. Osmanabad U/sec. 403, 420, 365, 467, 468, 471 of I.P.C. " 06. Heard learned counsel for the respective parties. Advocates for the contesting parties have argued at length on the aforesaid facts. Advocate Shri Tikle holding for Advocate Shri V.D.Salunke for the 6 petitioners argued that the investigation is stayed as per interim orders passed in these two writ petitions. It is necessary that first the complaints filed by the petitioners under Section 138 of the Negotiable Instruments Act are heard by the learned Judicial Magistrate. Those complaints are transferred to the court at Osmanabad where those are pending. According to Advocate Shri Tikle, the FIRs lodged by present Respondent No. 2 against the petitioners herein are nothing but defence which is available to Respondent No. 2 in the said complaints of the present petitioners filed under Section 138 of the Negotiable Instruments Act. In the circumstances, it is necessary to quash the FIRs or at least stay further investigation into the crimes registered with Tamalwadi Police Station until decision of the complaints filed by the petitioners under Section 138 of the Negotiable Instruments Act. 07. On the other hand, Advocate Shri P.R.Patil argued that in this case the cheques were lost on 12.11.2003, application to bank was filed on 13.11.2003, bank account itself was closed on 11.11.2007 and the alleged cheques are said to be issued on 25.3.2009. So, the application filed in the 7 bank on 13.11.2003 regarding loss of cheques cannot be said to be after thought and, therefore, it cannot be said that the FIRs lodged by present Respondent No.2 are false. 08. Learned APP Shri Wagh, when specifically asked, submitted that the investigation is stayed as per the orders of this court and that it is necessary for the Investigating Officer to record the statements of the witnesses and attach the relevant documents. 09. Having considered all the aspects, in my opinion, it is necessary to ascertain in the first instance whether really application was given by Respondent No. 2 to the bank on 13.11.2003 regarding loss of cheques as alleged which, according to Respondent No.2, were misused by the petitioners for the purpose of filing false complaints under Section 138 of the Negotiable Instruments Act. It will also have to be ascertained from the bank whether those cheques were issued to Respondent No.2 prior to November-2003 and whether the bank account was closed by Respondent No.2 on 11.11.2007. Investigation in this matter by independent agency such as police will 8 be helpful not only to Respondent No. 2, but, in fact, also to the petitioners. Police can also ascertain whether the alleged application for loss of cheques was genuine, or the cheques were not lost, but those were used by Respondent No.2 himself by issuing the same to the petitioners. So, the factum of loss of cheques is vital and investigation into the same is in the interest of both the parties. At this stage, in my opinion, this is a too premature stage to quash the FIRs. This, therefore, is a case not fit to quash the FIRs, but to proceed with the investigation into these vital aspects which ultimately may turn out to be of benefit even for the petitioners. 10. Writ Petitions are, therefore, dismissed. Rule in both petitions discharged. However, it is made clear that the petitioners will have liberty to approach this court in case investigation is over. pnd/criwp686.09 (P.R.BORKAR,J.)