Back
2008(1) Bankmann 569 (Bom.)
BOMBAY HIGH COURT
B.H. Marlapalle, J.
Sahakar Maharashi Shankarrao Mohite Patil Nagari Gramin Sahakari Pathasanstha and Another —Petitioners
versus
Subhash Bhimrao Gavsane
and Anr. —Respondents
Crl. Writ Petition No. 1778 of 2005 with Crl. Appln. No. 213 of 2007
Decided on 2.11.2007
For the Petitioners:Mr. Rajiv Patil i/b Mr. V.V. Purwant, Advocates.
For the Respondent No. 1:Mr. Nitin Jamdar, Advocate.
For the State: Mr. D.P. Adsule, A.P.P.
Headnote:Negotiable Instruments Act, 1881—Section 138—Dishonour of cheque—Prosecution—Petition to quash complaint and proceedings on plea that dishonoured cheque was missing from office of accused No. 1 Society and complaint to that effect was lodged with drawee bank—Reply to demand notice refuted any such contract of service wherein cheque in question came to be issued to complainant for his audit services rendered to accused society—Whether proceedings could be quashed on such plea? No.
Held: The existence of debt or any other liability, the cheque was misplaced and complaint was recorded in the Bank as well as local Police Station concerned, the cheque was stolen away by the complainant or any other person, the accused had never agreed to pay the fees of Rs. 50,00,000 to the complainant and the complainant’s audit fee was only fixed at a certain amount and not at Rs. 50,00,000/- are all the issues which are required to be examined by the Trial Court based on the evidence that the parties may adduce. The so called defence raised by the petitioners makes no case at all to invoke the inherent powers of this Court under Section 482 of Cr.P.C. and quash the proceedings in S.T.C. No. 417 of 2004, on the facts and in the circumstances of this case. The Photostat copy of the cheque brought on record prima facie indicates that all the three accused i.e. accused Nos. 2 to 4 had signed and whether the resolution relied upon by the complainant is fabricated or otherwise is a matter which requires to be gone through by assessing the evidence both oral as well as documentary that will come before the Court during the trial of the complaint. Having regards to the abovementioned factors in a complaint filed under Section 138 of the Act, undoubtedly the complainant has made out a triable case and the revision Court was right in dismissing the revision application, praying for quashing the process. (Para 7)
Result: Petition dismissed.
B.H. Marlapalle, J.—This petition filed under Article 227 of the Constitution read with Section 482 of Code of Criminal Procedure prays for setting aside the order of issuance of process passed by the learned J.M.F.C., Madha on 9.6.2004 in S.T.C. No. 417 of 2004 filed under Section 138 of the Negotiable Instruments Act, 1881 (the Act for short) and duly confirmed by the learned 1st Ad hoc Additional Sessions Judge, Solapur by dismissing Criminal Revision Application No. 187 of 2004, as per his judgment and Order dated 20.6.2005. In short, the petitioner- Credit Co-operative Society prays for quashing of the proceedings in S.T.C. No. 417 of 2004 filed under Section 138 of the Act in respect of the dishonour of cheque bearing No. 249385 and in the sum of Rs. 50,00,000/- drawn in favour of the complainant allegedly by the petitioner No.1-Credit Society which is registered under the Maharashtra Co-operative Societies Act, 1960. The petition was admitted and by way of interim relief the trial of the complaint was stayed. As this was an ex parte order passed by this Court on 22.12.2005, the complainant-present respondent No. 1 filed Criminal Application No. 213 of 2007 and prayed for vacating the interim relief. Criminal Application No. 412 of 2006 was filed for the same relief by the complainant but it was turned down on 26.2.2007 by this Court and the complainant was granted liberty to prefer a fresh application for vacating the stay, if the petition was not disposed off by 10.4.2007. Hence, this second application has been filed by the complainant. With the consent of the parties, the main petition itself has been heard finally and it is being decided on merits.
2. The petitioner No. 1 is managed by a Managing Committee/Board of Directors and petitioner No. 2 is the Secretary of the petitioner No. 1-Society. The respondent No. 1 is a certified Auditor by the Department for Cooperation, Government of Maharashtra for carrying out audit of Co-operative Societies. As per the letter dated 28.5.2003 issued by the District Deputy Registrar, Co-operative Societies at Solapur, the complainant came to be appointed as certified auditor for four different Co-operative Societies and first of them being the petitioner No.1- Society. It is the case of the complainant that after the said, order was issued by the District Deputy Registrar on 28.5.2003, the accused Nos. 1 to 4 approached him sometime in the month of April, 2004 and requested to render consultancy services by way of legal/ expert advice to streamline the working of the society and its branches and also to undertake the audit. The complainant agreed to render his service but claimed that his fees would be Rs. 50,00,000/- which was allegedly agreed by the accused Nos. 1 to 4 and consequently the dishonoured cheque was issued on 3.5.2004 in the sum of Rs. 50,00,000/-. The said cheque was received dishonoured on 14.5.2004 from the Solapur District Co-op Bank Limited, Kurduwadi Branch, District Solapur and, therefore, on the same day the complainant issued a demand notice under Section 138(b) of the Act. The notice was replied to by the accused on 17.6.2004 and it is obvious that it was not replied within 15 days from the receipt of the notice from the complainant. The claim of the complainant was denied in the reply and it was further claimed that the dishonoured cheque was, in fact, missing from the office of the accused No.1–society and a complaint to that effect was lodged with the Solapur District Central Co-operative Bank, Kurduwadi Branch on 25.3.2004. The notice further indicates that there was no such contract as claimed by the complainant and the society was not required to pay any fees to him. It was further alleged that, on the contrary, while discharging the duties as Auditor, the complainant had clandestinely taken away a blank cheque signed by the accused and sought to encash.
3. The learned Additional Sessions Judge considered all the grounds raised by the accus
