- 1 - IN IN IN THE HIGH COURT OF JUDICATURE AT BOMBAY THE HIGH COURT OF JUDICATURE AT BOMBAY THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL CRIMINAL CRIMINAL APPELLATE JURISDICTION APPELLATE JURISDICTION APPELLATE JURISDICTION CRIMINAL CRIMINAL CRIMINAL WRIT PETITION NO.1729 OF 2008 WRIT PETITION NO.1729 OF 2008 WRIT PETITION NO.1729 OF 2008 M/s.M.M.Metal Matrix Pvt.Ltd. & Ors. ...Petitioners vs. 1.M/s.D.G.False Flooring & Technologies P.Ltd. 2.State of Maharashtra ...Respondents Mr.Vijay Desai for the petitioner Mr.Y.S.Shinde A.P.P. for State CORAM: CORAM: CORAM: A.S.OKA,J. A.S.OKA,J. A.S.OKA,J. DATE DATE DATE : AUGUST 30,2008 : AUGUST 30,2008 : AUGUST 30,2008 P.C.: P.C.: P.C.: 1. When it was brought to the notice of the learned Advocate appearing for the Petitioners that a remedy of filing a Revision Application under section 397 of the Code of Criminal Procedure,1973 for challenging the order issuing process was available, he submitted that the said remedy is not an efficacious remedy as the prayer for quashing the complaint under section 138 of the Negotiable Instruments Act,1881 is based on certain documents which are not on record of the complaint. 2. He has invited my attention to a letter dated 1st September 2007 purportedly issued by the first Respondent to the first Petitioner and a letter dated 14th July 2008 issued by the Bank of India in favour of the first Petitioner. His submission is that the entire amount payable to the first - 2 - Respondent was duly received by the first Respondent in the form of the three cheques in the total sum of Rs.3,40,000/-. He has placed reliance on the aforesaid letter dated 1st September 2007 for showing that the cheques in the sum of Rs.2,40,000/- were accepted by the first Respondent in full and final settlement of transaction of the sale and purchase of false flooring and other material. Relying upon the said documents, he submits that as the entire amount was received by the first Respondent, the complaint filed by the first Respondent under section 138 of the said Act be quashed. 3. I have considered the submissions. The cheque amount as disclosed in the complaint is Rs.4,14,000/- which was allegedly payable against the three challans which have been mentioned in the complaint. There is nothing in the letter dated 1st September 2007 to show that two cheques in the sum of Rs.1,00,000/- and Rs.1,40,000/- were in full and final settlement of the transaction for which the cheque in the sum of Rs.4,14,000/- was issued. The letter dated 1st September 2007 specifically refers to the account of the sale of false flooring as well as matrix and the receipt of two cheques in the sum of Rs.1,00,000/- and Rs.1,40,000/- respectively. The letter dated 14th July 2008 refers to the three cheques totally amounting to Rs.3,40,000/-. Even in the reply issued by the first Petitioner to the notice of demand issued by the first respondent, there is no specific reference as to how - 3 - much amount was paid to the first Respondent in full and final settlement of the claim of the first Respondent. If the reply is perused, it merely records that in the letter dated 7th September 2007 the first respondent has stated that there was no balance amount due by the petitioners. 4. If the letter dated 1st September 2007 relied upon by the petitioners related to the transaction in respect of which the disputed cheque was issued, there was no occasion for the first petitioner to issue one more cheque in the sum of Rs.1,00,000/- which is reflected in the letter dated 14th July 2008. 5. It is, thus, clear that the contentions raised by the counsel for the petitioners will have to be established on evidence and at this stage the complaint under section 138 of the Negotiable Instruments Act, 1881 cannot be quashed on the basis of the said documents. 6. Hence, no case is made out for interference. Petition is rejected. 7. All contentions of the parties on merits of the pending complaint are expressly kept open. 8. Trial is expedited. - 4 - JUDGE JUDGE JUDGE