Bombay High Court
Satbir S. Narang And Anr vs Sanjay Kishin Shahani And Anr on 21 December, 2022
Bench: Amit Borkar
1-apl-144-22 all.doc
Ghuge
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPLICATION NO. 144 OF 2022
WITH
CRIMINAL APPLICATION NO.145 OF 2022
WITH
CRIMINAL APPLICATION NO.179 OF 2022
WITH
CRIMINAL APPLICATION NO.189 OF 2022
Satbir S. Narang and Anr ... Applicants
V/s.
Sanjay Kishin Shahani & Anr. ... Respondents
Mr. Rushabh Vidyarthi a/w Mr. Hakim Salim, Parth
Parikh i/b. Hakim Salim A R for the applicants.
Mr. Sanjay Bhojwani for respondent No.1
Mr. A.R. Patil, APP for the State.
CORAM : AMIT BORKAR, J.
DATED : DECEMBER 21, 2022
P.C.:
1. Since the facts and the question of law involved in these
applications are similar, all are disposed of by the common
judgment.
2. According to the complainant, in a proceeding under Section
Section 138 of the Negotiable Instrument Act, 1881 he agreed to
invest an amount of Rs.65,10,000/- (Sixty Five Lakh Ten Thousand
Only), with the accused-petitioner. According to him the cheques
were issued for discharge of the amount which he invested with
the accused. He issued demand notices on 24 th April, 2019 stating
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that amount of Rs.65,10,000/- (Sixty Five Lakh Ten Thousand
Only) is due from accused. On 5th June, 2019, accused replied
demand notices by contending that he had paid amount of
Rs.59,88,000/- (Fifty Nine Lakh Eighty Eight Thousand only) from
time to time before date of dishonour of cheque. On 19th June,
2019 the respondent No.1 filed complaints under Section 138 of
the Negotiable Instrument Act, 1881. The learned Magistrate
rejected application under Section 143(A) of the Negotiable
Instrument Act, 1881 holding that the complainant had not
approached the court with clean hands; the direction to pay as
contemplated under Section 143(A) of N.I. Act, 1881 is
discretionary; and considering the conduct of the complainant, the
accused need not be directed to pay the amount. Aggrieved
thereby complainant filed revision application before the learned
District Judge. Learned District Judge quashed the order of
Magistrate by directing the accused to pay 20% of the amount of
the cheque.
3. Learned advocate for the accused/applicant submitted that it
has been consistent stand of the accused that he repaid an amount
of Rs. 59,88,000/- (Fifty Nine Thousand Eighty Eight Thousand
Only) out of Rs.65,10,000/-(Sixty Five Lakh Ten Thousand Only)
and, therefore, there was no legally recoverable liability on the
date of dishonour of cheque.
4. Per-contra, the learned advocate for the complainant
submitted that the amounts shown in the account extract annexed
to the applications at Exhibit-(A) are the payments made towards
profit of business jointly run by the applicants and the
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complainant. He submitted that the quantum of the amount and
the dates reflects that the amounts paid to the complainant was
towards the profit.
5. On perusal of the orders passed by the learned Magistrate
and learned Sessions Judge, it appears that none of the courts
have considered rival contentions of the parties in its proper
prospective. None of the courts has discussed rival contentions
raised by the parties. In the absence of the decision making process
and the reasons in support of finding about the percentage of the
amount required to be paid under Section 143(A) of the
Negotiable Instrument Act, 1881, the superior court has no
advantage of scrutinizing reasons assigned for arriving at a finding
in relation to Section 143(A) of N.I. Act, 1881. In the absence of
reasons demonstrating application of mind, it is necessary in the
interest of justice that the proceedings be remanded back to the
learned Magistrate for fresh disposal in accordance with law to
consider rival contentions raised by the both the parties. Hence,
following order :-
a) The proceedings are remanded back to the learned 2 nd
Joint Judicial Magistrate First class, Cantonment Court, Pune
for disposal in accordance with law.
b) Considering the facts of the case the learned 2 nd Joint
Judicial Magistrate First Class, Cantonment Court, Pune is
requested to decide the applications within Four (4) weeks
from the date of appearance of the parties.
c) Parties shall appear before the learned 2nd Joint
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Judicial Magistrate First Class, Cantonment Court, Pune on
3rd January, 2023.
6. The writ petitions are disposed of in the above terms. No
costs.
(AMIT BORKAR, J.)
