The complaints under section 138 of the Negotiable Instruments Act made out a case for investigation, and the presumption in favor of the holder of the cheques could only be rebutted during the trial. The determination of the vicarious liability of the directors would be at the stage of framing charges.

JUDGMENT - D.S. ZOTTING, J.:---Criminal Writ Petition Nos. 27/2001, 123/2001, 124/2001 125/2001 have a common grievance hence, these petitions can be disposed of by a common judgment and learned Counsel for the respective parties also agree for the same.

2. Heard Mr. D.G. Aras, Advocate, holding for Mr. A.D. Shinde, learned Counsel for the petitioners, Mr. A.P. Mundargi, learned Counsel for the respondent No. 1 and Mrs. J.P. Akolkar, learned A.P.P. for the respondent No. 2-State.

3. In Criminal Writ Petition No. 27/2001, Rule has already been issued.

Rule in Cri.W.P. Nos. 123/2001, 124/2001 125/2001. With consent of the parties, rule is made returnable forthwith.

4. The above petitions have been filed by the original accused. They pray this Court to invoke powers under Article 227 of the Constitution of India as well as inherent powers under section 482 of Cri.P.C. for the purpose of quashing complaints in Criminal Case Nos. 1572/2000, 1218/1999, 1685/2000 and 2625/2000; filed under section 138 of the Negotiable Instruments Act, 1881.

Facts relevant for decision of these petitions may be summarized as under:

5. The petitioners are the original accused in the above referred criminal cases which are filed by the respondent No. 1 company. The petitioner Nos. 2 to 4 are the directors of the petitioner No. 1 company. The respondent No. 1 has filed the said criminal cases alleging that the petitioners have entered into an agreement with the respondent No. 1 company to purchase its business unit known as "Atlaz Digi-Tel Pvt. Ltd." which manufactures certain telecom products. An agreement was entered into between the parties on 2-8-1997, for purchasing the said unit, wherein, postdated cheques were given to the respondent No. 1.

Particulars of cheques in volved in the criminal case giving rise to the petitions may be stated as under :

--------------------------------------------------------------------------------------------------

Cri. Case No. Cri.W.P. No. Particulars of cheque

--------------------------------------------------------------------------------------------------

1. 1572/1998 27/2001 196947, dt. 30-3-1998 for

Rupees 150 lacs.

2. 1218/1999 123/2001 196950, dt. 30-12-1998 for Rupees 37 lacs.

3. 1785/1998 124/2001 196948, dt. 30-12-1998 for Rupees 37 lacs.

4. 2625/1998 125/2001 196949, dt. 30-9-1998 for

Rupees 37 lacs.

--------------------------------------------------------------------------------------------------

The respondent No. 1 presented the said cheques to the bank at Jalgaon, but the cheques were dishonoured with remarks either as "Referred to the Drawer", due to stop payment order or "Fund insufficient". Thereafter, the same was intimated to the respondent No. 1 by the concerned bank. The respondent No. 1, therefore, issued notices to the petitioners. The notices were received by the petitioners. It has been contended by the respondent No. 1 that a false reply was given by petitioners though they are liable to pay same. They committed offence under section 138 read with section 141 of the Negotiable Instruments Act, 1881 and therefore, the said criminal cases are filed by the respondent No. 1 in the Court of CJM, Jalgaon. Thereafter, the petitioner were served with summonses. The petitioners have appeared in the said criminal cases and these cases are pending.

6. The petitioners submit that they are builders, however, they were looking for an alternative business. They came in contact with Mr. Anil Jain, the Director of the respondent No. 1 company. Mr. Anil Jain impressed upon the petitioners that he has a complete term of experts and know technical know how in EPABX System and other telecom products. It was also impressed upon the petitioners, particularly the petitioner No. 4, that the respondent No. 1 company has a team of experts headed by Dr. Y. Chandrashekhar and they have research facility, however, because of lack of working capital, they are unable to make the said unit

Click Here to Read the rest of this document