Allowed

Jeetendra Anthony Fernandes v. Hathway Cable and Datacom Pvt. Ltd. and Anr.

Bombay HC22 Aug 2007WP/583/2007

Case brief

AI extract

What is this about?

Criminal Writ Petition seeking quashing of proceedings under Section 138 NI Act. Court held that if petitioner pays outstanding dues with interest, proceedings shall stand compounded under Section 147 NI Act.

What did the court decide?

Petition allowed; Criminal Case No. 5659 of 2003 to be compounded under Section 147 of NI Act upon payment of dues and interest.

Jeetendra Anthony Fernandes Vs Hathway Cable and Datacom… — Cheque Dishonour | Bombay HC (2007)

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IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE SIDE

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Criminal Writ Petition No.583 of 2007

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Mr.Jeetendra Anthony Fernandes Vs.

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Hathway Cable & Datacom Pvt.Ltd. and anr.

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Petitioner

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Respondents

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Mr.D.Dwivedi for petitioner.

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Mr.Shriram Shirsat i/b. M/s. Navdeep Vora & Associates for resp.no.1.

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Mr.P.A.Pol, APP for State.

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CORAM: B.H.MARLAPALLE, J.

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Reserved on: August 14, 2007.

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Pronounced on : August 22, 2007.

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P.C.

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1.	Heard	the lea	rned counsel for th	e respectiv	e
parties	and	the	learned	APP	appears	for	the
respondent	no.2		- State.	The	petitioner	prays	for
quashing	the	proc	eedings in	Criminal	Case	No.565	9 of
2003	filed	by	the respond	ent no.1	for	an	offence

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punishable under Section 138 of the Negotiable

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Instruments Act, 1881.

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As per the petitioner he joined a company by

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name Hathway Investment Pvt. Ltd. and in November 2001 he was transferred to M/s. Hathway Cable &

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Datacom Pvt. Ltd., the present respondent no.1. On 26/12/2001 he was granted a personal loan of Rs.50,000/by the company and an agreement to the same effect was executed between the parties. On the same date he had given a blank cheque bearing No.468376 dated 3rd March 2003 for an amount of Rs.50,000/and drawn on HDFC Bank and in favour of the respondent no.1 - Company. He left the said Company on 5th March 2003 when his letter of resignation was accepted. It appears the respondent - company deposited the cheque with their Bankers i.e. HDFC Bank, F.C.Road Branch, Pune on 19/4/2003 but the same was returned under the Banker’s memo dated 19/4/2003 for the reasons "Insufficient Funds". After giving the statutory notice dated 28/4/2003 the Company filed Summary Criminal Case No.5659 of 2003. The order of process was issued and the same was served on the petitioner on 16/1/2004. He approached the Sessions Court in Criminal Revision Application No.432 of 2006 against the order of issuance of

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process and the revision came to be dismissed on

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31/1/2007. Hence this petition.

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The statutory notice dated 28/4/2003 was

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2/5/2003 and	he point	ed o	ut that	ther	e	was no legally
enforceable	liability	of	Rs.50	,000/-		against the
dishonoured	cheque	which	was hand	ed	over	by him to
the company	only by	way	of a	colla	teral	security. He
further submit	ted that	the	loan o	f	Rs.50	,000/- was to
be repaid	in 24	equ	al instalme	nts	of	Rs.2261/- and
that he	had alre	ady	cleared	13		equated monthly
instalments	and what	was	remaining	to	be	paid was 11

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equated monthly instalments as due on 3/4/2003 onwards.

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4.		To rebut t	his contention the co	mpany has filed
an		affidavit	and submitted	that the	p	etitioner		was
also		granted an	additional	loan of	Rs.23	,500/-	and	a
cash		advance of	Rs.5000/-	was converte	d	into	loan	on
30th	A	pril 2002.	The pet	itioner has	clar	ified	by	way
of	rej	oinder that	out of	the lo	an	amou	nt	of
Rs.23,5	00/-	which	was to be	repaid in	24	EMIs	of	Rs.
1089/-		per month,	he had cl	eared 12 E	MIs	i.e.		from
April		2002 to	March 2003.	However,	it	is	ad	mitted
that		for the	recovery of	the balance	of	the		second
loan		amount t	he employer	has	alrea	dy	filed	a
complai	nt	against	the petitio	ner before		the	com	petent
court		at Ludhi	yana (Punjab	State).	In	this	p	etition
we	are	concerned	only with	the cheque	whi	ch w	as	given

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by	way	of collateral secur	ity	against the	firs	t loan
of Rs.50	,000/-.	As noted	earlier	, the	petitione	r had
already	cleared	13 EMIs from	the	first loan	and	the
amount	of	each EMI	was	fixed	at	Rs.2261.
Consequently	he	has cleared an	amo	unt of	Rs.2261	x13 =
29,393/-	and	he was due to	pay	the remaini	ng 1	1 EMIs
which	amount	comes to Rs.226	1x11	= 24,87	1/-.	The
petitioner	has	further pointe	d o	ut that	his	salary
for one	month	i.e. an amount	of	Rs.8000/-	was	due to
be paid	and	it was not	paid	to him	afte	r his
resignation.		The employer	has	disputed	this	and
pointed	out th	at the said a	mount	was ad	justed	against
some	advance	payment. It		is, ther	efore,	not
necessary	to	go into this	issue	of un	paid	salary.
The	fact	remains that out	of	the coll	ateral	security

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cheque the petition has yet to pay an amount of Rs.24,871/- to the employer as of March, 2002.

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5.			The	employer	is also	entitled f	or the
interest,		may		not	be	at	the		market	rate,	and,
therefore,		it		would	be	just	and		proper	that	the
petitioner			pays	an	amount	of	Rs	.35,00	0/- as	lump	sum
to	the		em	ployer.	The	petitio	ner	says	that	he	has
brought	the		said	amoun	t in	cash	tod	ay	and the	same	is
hereby		dire	cted	to	be	paid	to	the	learned	Ad	vocate

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for	the	resp	ondent-e	mployer	or	in	the	alternativ	e it
could	be	deposi	ted	with	the	Registry	of	this	court.
On	payment	of	the	said	amount	or	on	its deposit	with
the	Registry	of	this	court,	Crim	inal	Case	No.	5659
of	2003	shall	stand	comp	ounded	under	Sec	tion 147	of

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the Negotiable Instruments Act, 1881. Hence ordered

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accordingly and the petition stands disposed.

Jeetendra Anthony Fernandes v. Hathway Cable and Datacom Pvt. Ltd. and Anr.

Case brief

What is this about?

What did the court decide?

Jeetendra Anthony Fernandes v. Hathway Cable and Datacom Pvt. Ltd. and Anr.

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

Issues for consideration

Statutes considered

Parties & counsel

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