-: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 APPLICATION NO. 881 OF 2007 APPLICATION NO. 881 OF 2007 APPLICATION NO. 881 OF 2007 WITH WITH WITH CRIMINAL CRIMINAL CRIMINAL APPLICATION NO. 882 OF 2007 APPLICATION NO. 882 OF 2007 APPLICATION NO. 882 OF 2007 WITH WITH WITH CRIMINAL CRIMINAL CRIMINAL APPLICATION NO. 883 OF 2007 APPLICATION NO. 883 OF 2007 APPLICATION NO. 883 OF 2007 Mr. Pravin Joseph Pathe Mr. Ravindra Joseph Pathe. ... Applicants. V/s. M/s. Kothari Associates & Ors. ... Respondents. Mr. M.S. Mohite for the Applicants. Mrs. A.A. Mane, A.P.P. for the State. CORAM CORAM CORAM : K.U. CHANDIWAL,J. : K.U. CHANDIWAL,J. : K.U. CHANDIWAL,J. DATE DATE DATE : 011TH AUGUST, 2008. : 011TH AUGUST, 2008. : 011TH AUGUST, 2008. P.C. P.C. P.C. : : : . Heard Mr. Mohite for the Applicant. 2. The learned Counsel took me to one set of documents purported to be between Madanmohan @ Nitin Jaising Shitole and Smt. Anie Joseph Pathe and also a receipt executed in between M/s. Kothari Associates in favour of Smt. Anie Joseph Pathe, Pravin Joseph Pathe, Ravindra Joseph Pathe, Smt. Sindhu Shirish Pathe, Sunil Shirish Pathe. He canvassed that the three cases involved the same point except difference in the cheque numbers and the amount. 3. Before the J.M.F.C. while dealing with the matter of defence of the accused as to the cheques -:2:- were issued as the security, the learned J.M.F.C. did not approve said defence and arrived at the conclusion that the cheques were issued by the Respondent in discharge of legally enforceable liability and it was under an agreement/receipt. He did not agree that there was a impediment in the transaction of ULC requirement, and compliance of the same has forced the Respondent not to honour the cheques. Mr. Mohite invited my attention to the agreement dated 29th June 1989 referred above in which specifically it is incorporated that any obstacle in bringing ULC clearance will not be a ground to avoid or refuse the payment. It is so stated in clause D of the said agreement. 4. The learned J,M.F.C. by the order dated 21.12.2005 convicted the accused for the offence punishable under Section 138 of Negotiable Instruments Act. Being aggrieved by said order, the Accused/Respondent preferred Criminal Appeal No.44 of 2006 before the learned Sessions Judge at Pune, and Appeal was heard by the Additional Sessions Judge - 8, Pune and by his order dated 28.12.2006, he has reversed the findings recorded by the J.M.F.C. and acquitted the accused by allowing the appeal. The Appellate Court gave emphasis to the compliance of ULC proceedings and according to the findings recorded by the Appellate Court, it was the complainant and the -:3:- other owners who under took by the agreement to do all sort of needful relating to development agreement including obtaining ULC and he recorded, position is clear that the complainant and the owners of the property have failed to perform their part of contract. 3. Unfortunately, the documents which are tendered show things otherwise it was an irrevocable power of attorney executed in favour of the Respondent and clearly specified as stated above that ULC formalities was not to be treated as an impediment in the transaction. These aspects needs reconsideration. 4. Hence, leave to appeal granted. As other two cases arise with the identical facts, leave to appeal is also granted in those two cases, namely Application Nos.882/07 and 883/07. 5. Appeal is admitted. (K.U. (K.U. (K.U. CHANDIWAL,J.) CHANDIWAL,J.) CHANDIWAL,J.)