JUDGMENT :

K.R. Shriram, J.

These are two appeals impugning an order and judgment dated 20th November 2002 passed by the Judicial Magistrate First Class, First Court, Kalyan, acquitting respondent no.1 in both appeals of offences punishable under Section 138 (Dishonour of cheque for insufficiency, etc., of funds in the account) of the Negotiable Instruments Act, 1881 (the said Act).

2. Mr. Datar and Mr. Bali state that these are two appeals which could be disposed together because both the appeals arise out of the same Memorandum of Understanding (MOU). Two separate appeals are filed because two separate complaints were filed as the accused in both the complaint were different, the complainant being common.

3. Complainant and two accused were shareholders of one Shree Sai Baba Sand Dredging Company Private Limited (the said Company). Complainant, through himself and through others, held 2000 fully paid equity shares in the said company. It is not necessary to go into the background of the companies and how it works, suffice to say complainant wanted to exit and offered to sell 2000 shares to the two accused. Complainant personally had only 400 shares in his name, whereas the remaining 1600 shares were held by his wife (400 shares), his son (400 shares), his friend one Rizwan Gulam Murtaja Dolare (400 shares) and Farbida Dolare (400 shares). The accused agreed to purchase the 2000 shares for lump sum consideration of Rs.18 lakhs. The understanding between the two parties were reduced to writing in the form of a Memorandum of Association/Understanding dated 3rd September 1996. As per the MOU, two cheques of Rs.3 lakhs each dated 30th September 1996 and 31st October 1996 were issued. The balance Rs.12 lakhs were to be paid in installments by issuing 12 post dated cheques of Rs.1 lakh each. These 12 cheques were issued. Cheque no.030784 dated 1st December 1997 for Rs.1 lakh is the subject matter of the complaint in appeal no.684 of 2003. Four cheques, i.e., cheque no.087476 dated 1st November 1997, cheque no.087477 dated 1st January 1998, cheque no.087478 dated 1st February 1998 and cheque no.087479 dated 1st March 1998, each of Rs.1 lakh, are subject matter of the complaint in appeal no.685 of 2003. The MOU is short and it would be useful to reproduce the MOU and the same reads as under :

MEMORANDUM OF ASSOCIATION/UNDERSTANDING

This Memorandum of Association/Understanding entered at KALYAN this 3 rd day of September, 1996 between:

1. Shri. RAJENDRA RATAN MHATRE, age about 29 years of the FIRST PART,

2. Shri. DHARMENDRA RATAN MHATRE, age about 26 years of the SECOND PART.

both the above parties residing at Ratna Sunit Bungalow, Kopar Road, Near S.I.P High School, Dombivli (W).

3. SHRI.HARENDRA RAMCHANDRA PATHAK, age about 42 years, residing at Rekha Apartments, 3 rd floor, Usha Nagar, Murbad Road, Kalyan (W) of the THIRD PART.

Whereas the aforesaid parties are shareholders of Shree Sai Baba Sand Dredging Company Private Limited.

AND WHEREAS Shri. Harendra Ramchandra Pathak expressed his desire to sell and Shri. Rajendra and Shri. Dharmendra Ratan Mhatre expressed their desire to purchase his shares held in Shree Sai Baba Sand Dredging Company Private Limited.

AND WHEREAS the details of shareholding of Shri.Harendra Ramchandra Pathak in Shree Sai Baba Sand Dredging Company Private Limited are as follows :-

AND WHEREAS the price of the shares is fixed up at Rs.18.00 lacs.

NOW THEREFORE THIS PRESENTS WITNESS AND IT IS AGREED BY AND BETWEEN THE PARTIES HERETO AS FOLLOWS:-

1. Shri. H. R. Pathak agrees to sell and Shri. Rajendra and Shri Dharmend