Prakash D. Naik, J. - (1.) The petitioners in writ petition no.478 of 2017 and the applicant in criminal application no.186 of 2017, are arrayed as accused in complaint bearing No.2648/SS/2915, for an offence punishable under Section 138 of the Negotiable Instruments Act, 1881 ("NI Act", for short). The petitioner in writ petition no.478 of 2017 were impleaded as accused nos.2 and 3, whereas, applicant in Criminal Application No.186 of 2017, was impleaded as accused no.4.
(2.) The brief facts as alleged in the complaint are as follows: (a) Accused no.1 is the company incorporated under the Companies Act and accused nos.2 to 5 are incharge in respect of the company of accused no.1 and at all relevant point of time, have been dealing with the present complainant for and on behalf of the company and had also represented to the complaint that they are also personally responsible for all the affairs in respect of the company. (b) On the basis of the representation made by accused no.2 to 5, the complainant had dealt with accused no.1. Accused represented that they are in the business of construction and as such they are in process of development of residential complex known as "Tulip Garden" on the plot at land bearing survey no.115, village Kandivali. (c) Accused further represented that they are in need of necessary financial assistance for completing the building. Accordingly, accused offered to sell five flats to be constructed in the building in total admeasuring 12.170 sq. feet as against the payment of Rs.5 crores. It was further agreed that the accused would be entitled to refund money along with necessary compensation in case, if they do not intend to sell the flat to the complainant as narrated in the agreement signed between the parties being the agreement dated 2nd August, 2013. (d) As per the agreement, the complainant had paid the entire sum of Rs.5 crores by RTGS which has been duly received by the accused. They have acknowledge the receipt of the said amount vide letter dated 8th August, 2013. (e) Alongwith the said letter, the accused have also confirmed payment schedule in respect of the said amount. The accused issued necessary receipt for the sum of Rs.5 crores and also confirmed the allotment in respect to the flat to the complainant. (f) As per the agreement, upon completion of period of 15 months, the accused have also issued a cheque of Rs.7,50,00,000/-, in favour of the complainant being cheque dated 12th January, 2015, with a specific assurance that the cheque would be encashed on due presentation. However, when the cheque was presented, the same was returned by the banker with remark "Funds insufficient". (g) At all relevant point of time, the accused have been admitting their liability and as per the said admission, they have issued necessary cheque in favour of the complainant. The complainant is in possession of various such correspondence. (h) In view of the return of the cheque, notice was isseud on 29th March, 2015 to the accused and they were called upon to make payment in respect to the said cheque. Notice was replied by letter dated 10th April, 2015 and 27th April,2015. Inspite of notice, the accused have failed and neglected to make payment. Hence, the complaint was filed on 8th May, 2015. (i) Verification statement of the complainant was recorded and thereafter by order dated 8th October, 2015, learned Metropolitan Magistrate 43rd Court, Borivli, Mumbai issued process against the accused under the provisions of Section 138 read with Section 41 of the NI Act.
(3.) The petitioners in writ petition no.478 of 2017, challenged the order of process by preferring revision application before the Sessions Court, which was numbered as Criminal Revision Application No.13 of 2016. The applicant in Criminal Application No.186 of 2017, was impleaded as respondent no.4 in the said Revision Application. Accused nos.1, 4 and 5 were arrayed as respondet6 nos.3, 4 and 5. Respondent no.3 in the revision application (accused no.1) and respondent no.5 therein (accused no.5) filed reply to the said revision application. In the said reply, it was stated that the petitioners herein who are revision applicant in the said revision application as well as the applicant in criminal application no.186 of 2015, has nothing to do with the issuance of cheque. They do not have any role in these transactions. It was further stated that the present petitioners and the applicant in Criminal Application No.186 of 2017, are mere directors and noway connected or responsible for the day to day conduct of business of respondent no.3. They are falsely implicated in this case. It was also stated that only accused no.5 had transacted with the complainant on behalf of the company. The applicant in criminal application no.186 of 2917 also challenged the order of process by preferring Revision Application before the Sessions Court. The said application was numbered as Criminal Revision Application No.78 of 2016. Petitioners herein were impleaded as respondents in the said application. Reply was filed by them opposing revision application preferred by the original accused no.4 and it was contended that accused nos.1, 4 and 5 are also responsible for the offence. The complainant has also opposed the application preferred by the petitioners by filing reply. Revision Application preferred by the petitioners as well as accused no.4 were rejected by the Sessions Court.;