Back
2019 Supreme(Bom) 891
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
S.S. Shinde, J.
Sidharth Chauhan – Appellant
Versus
Aditya Birla Real Estate Fund – Respondent
Criminal Writ Petition No. 762 of 2019
Decided On : 19-07-2019
Rohan R. Sonawane, Adv., A.A. Ponda, Adv., N. Mundargi, Adv., S. Poria, Adv., C. Keswani, Adv., Economic Law Practice, Adv., A.R. Patil, Adv.
Headnote:
Negotiable Instruments Act, 1881 – Sections 138, 143 – Code of Criminal Procedure, 1973 – Sections 205, 317 – Quashment of Order – Exemption Application – Present writ petition is filed with the following prayer that this Honble Court be pleased to quash and set aside the impugned order passed in C.C. on exemption application filed on behalf of Petitioner by the Ld. 33Rd Metropolitan Magistare, Ballardpier, Mumbai; - Held, Section 317 of the Cr.P.C. comes into picture at the later stage of the trial recording of evidence. – However, under Section 205 of Cr.P.C. on the first day, the Advocate for the accused can record the plea, for which written application by the accused is not contemplated. – In the present case first respondent filed the complaint C.C. No. 8349/SS/2018 before the Ld. Metropolitan Magistrate, Ballardpier, 33rd Court, Mumbai. – In the said complaint the learned Magistrate issued process against the petitioner which was made returnable – Said Court was pleased to pass the impugned order. – The petitioner near about two months from the date of passing the impugned order filed the present writ petition. – The proceedings under Section 138 of Negotiable Instruments Act are required to be disposed of within six months keeping in view the mandate of Section 143 of the said Act and within three months from the date of assignment of the case as held by the Honble Supreme Court in the case of Indian Bank Association and Others Vs. Union of India & Others, (2014) 5 SCC 590. – Petition Rejected
JUDGMENT :
S.S. Shinde, J.
Rule, with the consent of the learned counsel appearing for the parties made returnable forthwith and heard.
2. The present writ petition is filed with the following substantive prayer:-
(b) that this Hon'ble Court be pleased to quash and set aside the impugned order dated 11.12.2018 passed in C.C. No. 8349/SS/2018 on exemption application dated 11.12.2018 filed on behalf of Petitioner by the Ld. 33Rd Metropolitan Magistare, Ballardpier, Mumbai;
3. Brief facts leading for filing the present petition are as under:- It is the case of the petitioner that, the petitioner is an individual accused in complaint C.C. No. 8349/SS/2018 filed by Respondent No. 1 before the learned 33rd Metropolitan Magistrate, Ballardpier, Mumbai under the Negotiable Instruments Act. The Respondent No. 1 is the original complainant in C.C. No. 8349/SS/2018 pending before the learned Metropolitan Magistrate, Mumbai wherein the petitioner stands arraigned as accused. The complaint proceedings alleged commission of offence under Section 138 of Negotiable Instruments Act, 1881 (hereinafter referred to as "the said Act"). It is the case of the petitioner that, it is alleged in the complaint that in the year 2013, the petitioner alongwith Sidhartha Buildhome Private Limited as promoters of one CSN Estates Private Limited approached the complainant and represented to the complainant that the accused alongwith CSN were engaged in the business of real estate development and vide share subscription cum shareholders agreement dated 09.05.2012 executed between CSN, Tata Housing Development and Lemon Tree Land and Developer Private Limited ("SPV"), CSN and Tata Housing have entered into a joint Venture for development of a residential project on a parcel of land admeasuring approximately 24.695 acres, situated at Gurgaon.
4. It is also alleged in the complaint that, further to the aforesaid representations made, the accused alongwith Sidhartha Buildhome Private Limited and CSN executed Subscription Agreement and Shareholders Agreement dated 29.09.2013. In the terms of Subscription Agreement and Shareholders Agreement, the complainant had agreed to subscribe 1,00,00,000 optionally convertible debentures of face value of Rs. 100/- each. It is further the case of the complainant that in addition to other securities, the Accused had executed a Deed of Guarantee dated 29.09.2013 in favour of the complainant taking personal responsibility to repay the debts of CSN arising under the Subscription Agreement and Shareholders Agreement. It is stated in the complaint that CSN failed to pay interest and redeem the optionally convertible debentures upon expiry of the period of three years from its subscription despite being called upon by the complainant. It is further alleged in the complaint that to secure the complainant in respect of the principal amount of Rs. 100 crores invested by the complainant under the Subscription Agreement and Shareholders Agreement and to discharge liability of CSN, the Accused handed over 4 (four) cheques drawn towards the repayment of principal sum of Rs. 100 Crores in the name of the complainant.
5. It is stated in the complaint that the complainant was constrained to present and deposit all the 4 (four) cheques issued by Accused to discharge its principal amount liability of Rs. 100 Crores on 04.06.2018. However, the 4 (four) cheques were returned unpaid on account of insufficiency of funds on 06.06.2018. The complainant immediately vide its statutory legal notice dated 13.06.2018 called upon the accused to pay the cheque amounts to the complainant within a period of 15 days of receipt of the statutory legal notice under the said Act. The complainant thereafter approached the learned 33rd Metropolitan Magistrate, Ballardpier, Mumbai by way of a complaint. The learned Magistrate upon hearing the complainant and perusing the complaint and documents annexed to the complaint held that prima facie case was made out and was further
