2011 ALL MR (Cri) JOURNAL 102


Amit Poddar Vs. State & Ors.

Criminal M.C. No.2450 of 2008

2nd August, 2010

Petitioner Counsel: Mr. D. K. SINGH
Respondent Counsel: Ms. GAGANPREET CHAWLA

Criminal P.C. (1973), S.482 - Negotiable Instruments Act (1881) S.138 - Dishonour of cheque - Supply of embroidery machine to petitioner admitted - Dishonour of three cheques also admitted - He however, pleaded that he had made more payment than the price of machine and that complaint is liable to be quashed - Held - Petitioner had raised a disputed question of fact which could not be decided in petition under S.482. (Para 6)


-This petition has been filed by the petitioner under Sec.482, Cr.P.C. with the prayer that the summoning order dated 28.2.2008 passed by learned Trial Court and the proceedings of complaint case No.6381/1 dated 28.2.2006 under Sec.138 of the Negotiable Instruments Act (in short 'NI Act') P.S. Connaught Place, Delhi, be quashed.

2. The brief facts of the case are that the petitioner had purchased a unit of six head computerized embroidery machine with sequence attached for a sum of Rs.9,50,000/-. The petitioner has paid Rs.1,00,000/- in cash against receipt as advance to respondent No.2 and petitioner also issued eight post-dated cheques of Rs.1,00,000/- each to respondent No.2. Two cheques bearing Nos.653958 and 653959 of Rs.1,00,000/- each were dishonoured. Respondent No.2/complainant served a legal notice upon the petitioner and thereafter filed a criminal complaint bearing No.1879/1 under Sec.138 of the NI Act against the petitioner. But the said case was withdrawn by respondent No.2/complainant on 23.9.2007. The petitioner claimed that he has made total payment of Rs.9,80,000/- against the price of machine which is Rs.9,50,000/-. The petitioner claimed to have paid Rs.30,000/- more than the price of the machine and has prayed that the proceedings are without any merit and the same be quashed.

3. On the other hand learned counsel for respondent No.2 submitted that the petitioner has purchased the aforesaid machine from respondent No.2 for a consideration of Rs.9,50,000/-. The petitioner issued eight post dated cheques for Rs.1,00,000/-. The balance amount of Rs.1,50,000/- was to be paid at the time of delivery of the machine. He further submits that only two cheques bearing Nos.653957 and 653960 for Rs.1,00,000/- were honoured. On presentation of cheques bearing Nos.653958 and 653959 were returned unpaid to respondent No.2 by the banker of the petitioner. Thereafter, legal notices were sent on the petitioner and when no payment was received a complaint was filed by the complainant bearing No.1879/1 which was in respect of cheque No.653958 was compounded and withdrawn on 23.9.2007. It was settled between both the parties that petitioner will pay outstanding balance amount and therefore he issued three fresh post-dated cheques for an amount of Rs.2,40,000/- each bearing Nos.641684 dated 28.10.2007, 641685 dated 28.11.2007 and 641686 dated 28.12.2007. However, respondent No.2 returned four cheques bearing Nos.653961, 653962, 653963 and 653964 for Rs.1,00,000/- to the petitioner. The other complaint filed in respect of cheque No.653959 is still pending in the Court of learned Metropolitan Magistrate, Patiala House, New Delhi. Cheque bearing No.641684 issued by the petitioner to respondent No.2 for Rs.2,40,000/- was again dishonoured by the bankers of the petitioner. In respect of cheque bearing Nos.641685 the petitioner asked respondent No.2 not to present the same and in lieu of the above said two cheques for Rs.2,40,000/- each against gave 4 post dated cheques for Rs.1,20,000/- each which on presentation were honoured by the bankers of the petitioner. Only one last cheque bearing No.641686 for Rs.2,40,000/- when presented was again dishonoured. Out of this amount of Rs.9,50,000/-, the petitioner has paid Rs.6,80,000/- and an outstanding balance amount of Rs.2,70,000/- is still not paid by the petitioner to respondent No.2. Respondent No.2 again served a legal notice on the petitioner for making payment of balance amount and stated that in case payment is not made within stipulated time the criminal proceedings will be initiated against the petitioner. Respondent No.2 filed a criminal complaint bearing No.638/1 under Sec.138 of the NI Act against the petitioner. Respondent No.2 also denied having received Rs.1,00,000/- in cash from the petitioner and also denied receipt thereof.

4. Learned Counsel for the petitioner submitted that the machine supplied by respondent No.2 was defective and respondent No.2 had responsibility of removing the defects in the warranty period but the respondent has failed to remove the defects in the said machine. This fact has also been denied by the learned counsel for the respondent that there was any defect in the machine.

5. I have heard learned Counsel for the parties and perused the record.

6. The petitioner admits in the petition that he has placed order for supply of a unit of six head computerized embroidery machine on respondent No.2. He has also given eight post dated cheques for the sum of Rs.1,00,000/- each. He has also admitted that the machine was duly supplied by respondent No.2 to the petitioner. He has also admitted that three cheques were dishonoured. He also admitted that last cheque bearing No.641684 for Rs.2,40,000/- was dishonoured. However, the petitioner has raised a plea that he has made more payment of Rs.30,000/- than the price of the machine and that the complaint is liable to be quashed. Since the supply of the machine by respondent No.2 to the petitioner has been admitted and the petitioner admitted receipt of the notice regarding dishonour of cheque for Rs.2,40,000/- and no payment has been made after legal notice served by the respondent No.2 to the petitioner, in my opinion there is sufficient cause of action available to respondent No.2 for filing case under Sec.138 of the NI Act against the petitioner under the law. The petitioner has also admitted that the cheque was issued in discharge of his liability to make payment towards price of the machine supplied. All the issues raised by the petitioner are disputed questions of facts which can only be decided by evidence by the Trial Court. These issues cannot be decided by this Court in this petition. No case for quashing the petition and the summoning order is made out. The present petition is totally frivolous and the same is hereby dismissed with costs of Rs.10,000/- to be paid to respondent No.2 before learned Trial Court.

Petition dismissed.