Quashed

Sanjay Subhash Kadam v. Bhushan Sambh Shikhare and Anr.

Bombay HC16 Oct 2023WP/963/2016

Case brief

AI extract

What is this about?

In a criminal writ petition, the petitioner challenged an order requiring him to produce documents proving fund availability for an earlier property agreement. The High Court held such documents irrelevant to the cheque dishonour case involving compensation for extending consent, quashing the revision order.

What did the court decide?

The impugned order dated 14.1.2016 passed in Criminal Revision Application No.550/2011 by the Additional Sessions Judge, Nashik, was quashed and set aside.

Sanjay Subhash Kadam Vs Bhushan Sambh Shikhare and Anr. — Cheque Dishonour | Bombay HC (2023)

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Digitally signed by CHITRA CHITRA SANJAY SONAWANE SANJAY Date: SONAWANE 2023.10.31 14:27:42 Chitra Sonawane. +0530 WP-963-2016 (corrected).doc

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(Corrected as per speaking to minutes order dt.30.10.2023)

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IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION

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Criminal Writ Petition No.963 of 2016

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Sanjay Subhash Kadam
Age 40 years, Occ. Agriculturist
and Business
R/at. Near Teli Samaj Dharm Shala
Telli Galli Trimbakeshwar,
Dist.Nashik… Petitioner
 (Orig.Complainant).

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Versus
1. Mr Bhushan Sambh Shikhare
Age : 40 years, Occ.: Business
R/o. : 417, Grih-sanket,
Near Satya Narayan Temple
Trimbakeshwar, Dist.Nashik… Respondent-State
 (Orig.Accused)

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2. State of Maharashtra
Notice to be served upon D.G.P.
Nashik

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…. Respondents

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Mr Sujay Palshikar a/w Gaurav Ugale i/b Mr Shriram Kulkarni
for petitioner
Ms Vrushali R Raje, Advocate for respondent No.1.
Mr HJ Dedhia, APP for the Respondent-State.

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Coram : R. N. LADDHA, J.
 Date : 16 October 2023.
P.C. :

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The petitioner/original complainant has filed a petition

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Page No. 1 of 8 ____________________________________________ 16 October 2023

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Chitra Sonawane. WP-963-2016 (corrected).doc

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to challenge the judgment and order dated 14.1.2016 in
Criminal Revision Application No.550 of 2011 passed by the
learned Additional Sessions Judge, Nashik whereby the order
passed by the trial Court below Exhibit 36 on 13.10.2011, in
RCC No.635 of 2009 was set aside and the petitioner/original
complainant has been directed to produce documents before
the trial Court regarding the availability of an amount of
Rs.5,00,000/- on 22.11.2008 and to give an opportunity to
the accused to cross-examine the witness on the issue of
legally enforceable debt.

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2.The petitioner claims that he had entered into an
agreement to purchase a property viz Municipal House No.
325, city survey No.787-A, admeasuring about 137.70 sq.mtrs
in village Tryambakeshwar from Suresh Pachorkar on
22.11.2008. As per the agreement, the petitioner had paid
Rs.5,00,000/- as earnest money on the date of the agreement
and agreed to pay the remaining amount of Rs.
Rs.31,00,000/- within one month of executing the sale deed.

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3.The petitioner claims that the respondent/accused learnt
about the transaction and proposed to buy the property from
the petitioner. The petitioner agreed to sale the property to

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Page No. 2 of 8 ____________________________________________ 16 October 2023

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Chitra Sonawane. WP-963-2016 (corrected).doc

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the accused for an additional Rs.5,00,000/- as they had a good
relationship and had issued a cheque of Rs.4,20,000/- and
promised to pay the remaining amount of Rs.80,000/- and an
additional amount of Rs.5,00,000/- in the first week of June
2009. However, the cheque was dishonoured, and as a result,
the petitioner constrained to file a criminal case against
accused.

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4.The learned Magistrate took cognizance of the
complaint and issued a process against the accused. The
accused appeared before the learned Magistrate and pleaded
not guilty. The matter was then posted for evidence, and the
complainant adduced his evidence. During cross-examination
of the complainant, the advocate for the accused filed an
application below Exh.36 contending that the complainant
should produce evidence regarding the availability of an
amount of Rs.5,00,000/- on the date of agreement to sale
dated 22.11.2008 executed between him and Suresh
Pachorkar. In reply to this application, the petitioner
contended that he had already filed a copy of the cheque
received by him from the accused, and there was no relevance
in showing documents as to whether or not the petitioner had
an amount of Rs.5,00,000/- on the date of the agreement

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Page No. 3 of 8 ____________________________________________ 16 October 2023

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Chitra Sonawane. WP-963-2016 (corrected).doc

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executed between him with a third party. The learned trial
Court rejected the said application of the accused by its order
dated 13.10.2011.

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5.Being aggrieved by this order, the respondent No.1 filed
a criminal revision application under Section 397 of the Code
of Criminal Procedure, 1973, bearing No.550 of 2011.
However, on 14.1.2016, the Additional Sessions Judge
allowed the revision application filed by the accused. The
Additional Sessions Judge ordered the trial Court to direct the
petitioner to produce relevant documents regarding the
availability of an amount of Rs. 5,00,000/- on 22.11.2008.
The accused/respondent was also given an opportunity to
cross-examine the witness on the issue of legally enforceable
debt.

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6.Feeling aggrieved and dissatisfied with the impugned
judgment and order dated 14.1.2016, passed in Criminal
Revision Application No.550 of 2011, the petitioner
preferred this petition.

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7.Mr SS Kulkarni, learned Senior Counsel appearing for
the petitioner, submitted that the order passed below Exh. 36

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Page No. 4 of 8 ____________________________________________ 16 October 2023

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Chitra Sonawane. WP-963-2016 (corrected).doc

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is an interlocutory order and no revision is maintainable
against it. In support of his contentions he relied on the
judgments of the Hon’ble Supreme Court in Madhu Limaye v.
State of Maharashtra AIR 1978 SC 47, Amar Nath & Ors.
vs. State of Haryana & Anr. (1977) 4 SCC 137 and the
judgment of this Court in Smt. Mamta w/o Ashok Vaidya v.
Ashok s/o Manohar Vaidya 1991 SCC OnLine Bom 445.

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8.The learned Senior Counsel argued that the accused’s
application demands the production of documents that show
the availability of Rs.5,00,000/- with the petitioner on the
date of the agreement to sale dated 22.11.2008. However,
these documents are irrelevant to the present complaint. The
agreement to sale dated 22.11.2008 is already produced
before the Court, wherein Suresh Pachorkar admits to
receiving Rs.5,00,000/-.

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9.Mr Kulkarni, learned Senior Counsel, submitted that
since the cheque was issued by the accused, there is a
presumption in favour of the complainant. If at all, the
accused has to dispute his legal liability towards the petitioner,
he has all the rights to do so with independent documents and
necessary evidence.

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Page No. 5 of 8 ____________________________________________ 16 October 2023

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Chitra Sonawane. WP-963-2016 (corrected).doc

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10. On the other hand, Ms Vrushali Raje, representing the
accused, submitted that the complainant had admitted during
cross examination that he had documentary proof to show
that he had an amount of Rs.5,00,000/- with him on the date
of agreement. In such circumstance, accused filed an
application Exh.36 requesting to the trial Court to direct the
complainant to produce documents to show that on
22.11.2008 an amount of Rs.5,00,000/- was available with
the complainant. She submitted that provisions of Section 138
of NI Act cannot be resorted to for recovery of unaccounted
amount. According to her, directing the complainant to file
such documents would assist the Court in finding out the
truth.

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11. The rival contentions now fall for the determination of
this Court.

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12. It is not in dispute that the applicant entered into an
agreement with Suresh Pachorkar, who acknowledged
receiving of Rs.5,00,000/-. This agreement was placed before
the trial Court. The present complaint is filed for
dishonouring a cheque of Rs.4,20,000/- issued as
compensation for extending the consent to the agreement

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Page No. 6 of 8 ____________________________________________ 16 October 2023

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Chitra Sonawane. WP-963-2016 (corrected).doc

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between the accused and Suresh Pachorkar. The accused
claims that the complainant did not have enough funds to
enter into a transaction with Suresh Pachorkar at that time.
However, Suresh Pachorkar never raised any objections in this
regard. Therefore, those documents which are directed to be
produced are irrelevant for the purpose of the present
complaint.

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13. The accused cannot blow hot and cold at the same time
wherein, prima facie, he issued a cheque towards the said
compensation for the mere existence of the earlier agreement
to sale dated 22.11.2008 and thereafter disputes to the fact
that the petitioner had not enough requisite funds to enter
into a transaction with Pachorkar. Since all the ingredients of
Section 138 of the NI Act are satisfied prima facie, there is a
presumption in favour of the complainant and if at all the
accused has to dispute his legal liability towards the petitioner
he has all the rights to do so with independent documents and
necessary evidence. Moreover, the impugned order is an
interlocutory order. Also, in the impugned order, there are
certain factually incorrect observations.

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14. Accordingly, the impugned order, passed by learned

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Page No. 7 of 8 ____________________________________________ 16 October 2023

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Chitra Sonawane. WP-963-2016 (corrected).doc

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Additional Sessions Judge, Nashik, in Criminal Revision
Application No.550/2011 dated 14.1.2016 is quashed and set
aside.

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 [R.N.Laddha, J.]

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Page No. 8 of 8 ____________________________________________ 16 October 2023

Sanjay Subhash Kadam v. Bhushan Sambh Shikhare and Anr.

Case brief

What is this about?

What did the court decide?

Sanjay Subhash Kadam v. Bhushan Sambh Shikhare and Anr.

Case brief

What is this about?

What did the court decide?

What the court decided

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