1 APPR 376/2010 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL APPLICATION NO.376 OF 2010 (For Bail) IN CRIMINAL REVISION APPLICATION NO.510 OF 2010 Mr. Ajay Verma ..... Petitioner. V/s M/s. East India Company & Anr. ..... Respondents. --- Mr. Samir Vaidya for the Petitioner. Mr. Sanjog Parab with Mr. J.P. Shah i/b Parab & Associates for Respondent No.2. Mr. A.S. Shitole, APP for the State. --- CORAM: V.M. KANADE, J. DATE : 25th November, 2010 P.C:- 1. Heard the learned Counsel appearing on behalf of the Petitioner and the learned Counsel appearing on behalf of Respondent No.2. 2. This is an application preferred for granting ad-interim bail to the Petitioner during penency of the Criminal Revision Application. 2 APPR 376/2010 3. The learned Counsel appearing on behalf of the Petitioner submitted that both the courts below have erred in convicting the Petitioner for the offence punishable under section 138 of the Negotiable Instruments Act. It is submitted that there was no legally enforcible debt or liability in view of MOU dated 24/02/2006. Secondly, it is submitted that the cheque issued is only by way of collateral security and, therefore, both the courts below have erred in convicting the accused for the said offence. Thirdly, it is submitted that the cheque was presented in Delhi, dishonoured in Delhi and, therefore, court in Mumbai did not have jurisdiction to try and decide the said criminal case and, therefore, order passed by the lower court and confirmed by the lower appellate court was non-est. 4. So far as the first ground is concerned, the learned Counsel submitted that the Sessions Court had not taken into consideration the submissions made by the accused. He submitted that, therefore, the Sessions Court had erred in not considering the said submissions. In my view, the said submission cannot be accepted. It is a settled position in law that if no reference is made to the submissions made by the Counsel, it has to be presumed that no arguments were advanced and that the court record is correct. 5. So far as the second ground that the cheque was 3 APPR 376/2010 issued only by way of collateral security is concerned, reliance was placed on the MOU which was executed between the parties. It is submitted that the MOU clearly reflected that the Petitioner had given a counter-guarantee only on the condition that if the Letter of Credit is not arranged from the buyer till 15/03/2006 then the complainant could encash the cheque of Rs 62,60,000/-. This submission also cannot be accepted since clause 3 of the said MOU clearly stipulates that only when the L/C is opened in favour of M/s East India Company, the cheque given by the Petitioner herein will become null and void. It is an admitted position that L/C is not opened in favour of M/s East India Company and, as such, the complainant was entitled to prosecute the Petitioner as a guarantor. It is a settled position in law that even a guarantor can be prosecuted if he had issued a cheuqe. In the present case, Petitioner had admitted that he had issued the cheuqe and the cheque was also signed by him. Presumption, therefore, is raised regarding legally enforcible liability. Initial burden, therefore, has been discharged by the complainant. It is well settled that guarantor can also be prosecuted since the liability of the guarantor falls in the category of other liability as mentioned in section 138 of the Negotiable Instruments Act which speaks about existing debt or any other liability. This submission also, therefore, cannot be accepted. 6. So far as the third submission that the Mumbai Court 4 APPR 376/2010 did not have jurisdiction to try and decide the said issue is concerned, in my view, at this stage, it would not be open for the Petitioner to agitate the said issue of jurisdiction. Apart from that, as rightly pointed out by the learned Counsel appearing on behalf of the complainant that the Petitioner herein had filed an application for transfer in the Apex Court and the Apex Court had, by a reasoned order, rejected the transfer petition. Petitioner has not made any reference whatsoever to the judgment and order passed by the Apex Court and has still argued vehemently on the question of jurisdiction. This is, therefore, a clear case of suppression of material fact from this Court and an attempt is made to mislead this court and obtain and ad-interim order of bail by suppressing the material fact. 7. No case is, therefore, made out for grant of ad-interim bail at this stage. Application for grant of ad-interim bail is rejected. 8. Place the Criminal Revision Application on the admission board along with application for bail on 13/12/2010. V.M. KANADE, J.