USHA BADRI POONAWALLA Vs. K KURIEN BABU

JUDGEMENT

(1.) This Petition has been assigned to this Court by order dated 27th June, 2005 passed by the Honble the Chief Justice. On 6th July, 2005 by consent of the learned counsel appearing for the Petitioner and the respondent No. 1 appearing in person, this petition was taken up for final hearing. Thereafter I have heard learned Counsel appearing for the Petitioner and the Respondent no. 1 in person. I have perused two separate written submissions filed by the Respondent no. 1 appearing in person. Though today the petition is fixed for dictation of judgment, I have heard the submissions made by the respondent No. 1 appearing in person for few minutes.

(2.) This is a petition filed under article 227 of the Constitution of India and section 482 of the Code of Criminal Procedure, 1973. The petition arises out of a complaint filed by the Respondent No. 1 against the petitioner under the provisions of section 138 of the Negotiable Instruments Act, 1881. The prayer in the petition is for quashing and setting aside the order passed by the learned Judicial magistrate First Class, Court No. 5, Pune, below exh. 1 in a complaint filed by the Respondent no. 1 by which the learned Judge directed to frame charges against the Petitioner under the provisions of section 138 of the said Act of 1881. A prayer is also made for quashing the proceedings of the complaint in view of the composition of the dispute between the petitioners and the Respondent No. 1 in terms of the Memorandum of Understanding dated 9th September, 1997. In the alternative, a prayer is made for discharge. It must be recorded here that this petition pertains to the assignment of another learned Single Judge of this Court. By order dated 10th June, 2005 the concerned learned Single Judge declined to take up the petition. By order dated 27th June, 2005 passed by the Honble the Chief Justice, this petition has been assigned to this Court.

(3.) With a view to appreciate the submissions made by the learned Counsel appearing for the Petitioner and the Respondent no. 1 appearing in person, it will be necessary to refer to the facts of the case. The complaint filed by the Respondent No. 1 is based on a cheque in the sum of Rs. 8,90,680/- dated 29th october 1996 allegedly drawn by the Petitioner in favour of the Respondent No. 1. A notice dated 19th November, 1996 was issued by the advocate for the Respondent No. 1 to the petitioner calling upon the Petitioner to pay the cheque amount within a period of 15 days. The case made out by the Respondent No. 1 in the said notice is that from time to time the respondent No. 1 rendered financial assistance to the Petitioner. According to the Respondent no. l, he had paid a total sum of rs. 7,10,000/- by way of financial assistance. According to the case of the Respondent No. 1, cheque amount of Rs. 8,90,680/- consists of the principal amount of Rs. 7,10,000/- and rs. 1,80,680/- being the agreed interest at the rate of 24% thereon. The Respondent No. 1 stated that the cheque was returned dishonoured with remark of the bankers that the funds were insufficient. The notice was replied to by the Petitioner by reply dated 7th december, 1996 sent by the Advocate for the petitioner. In the reply there is a denial by the petitioner of having issued the cheque. The allegation in the reply is that the Respondent no. 1 was acquainted with the Petitioner for reasonably long time and used to visit the petitioner's office. It is alleged that the respondent No. 1 got hold of some documents including the cheque in question. A private complaint was filed by the Respondent No. l on 10th January, 1997 and after recording the verification of the Respondent No. 1, the learned magistrate issued process on 18th June, 1997.