RAJESH KUMAR Vs. MEHROTRA IMPEX PVT. LTD.

JUDGEMENT

(1.) Present petition has been filed under section 482 Cr.P.C. read with Article 227 of the Constitution of India praying as under:

(2.) Brief facts of the present case, as narrated in the present petition, are that in 2010, the petitioner was running a small garment factory. Since around 2009, he was dealing with the respondent. Lastly during 15.11.2010 to 29.12.2010, he had purchased some fabric materials from the respondent on credit basis, upon certain terms and conditions. Respondent issued seven invoices of different amounts for the material purchased during 15.11.2010 to 29.12.2010. In the first week of July, 2011, final account has been mutually settled between the parties and therefore eight cheques (without mentioning dates) having total value of Rs.17,68,000/- were handed over to the respondent. The petitioner had offered these cheques for securing the debt of the respondent. Petitioner had promised to pay part payments time to time. The respondent had assured that after receiving all the due outstanding payments, all the eight undated security cheques would be returned back to the petitioner. Immediately thereafter, in the last week of July, 2011, against the total liability of Rs.17,68,000/-, as promised, the petitioner had made a part payment of Rs.2,00,000/- to the respondent. This part payment of Rs.2,00,000/- was made on 22.07.2011 through pay order. The said payment was made against running account and on 19.04.2014, the AR of respondent had admitted the said fact before the learned Trial Court. The payment was not made against any particular cheque, in fact, it was made against all the deposited cheques. Therefore, after making the part payment of Rs.2,00,000/-, the total outstanding dues/liability of the petitioner had been reduced to the amount of Rs.15,68,000/-. On 19.04.2014, AR of the respondent clearly admitted that the final debit balance was Rs.15,68,000/-. However, on 11.08.2011, the respondent had issued legal notice under section 138 of N.I. Act, demanding total amount of Rs.17,68,000/- from the petitioner. But the respondent did not discuss/disclose maliciously anything about receiving a part payment of Rs.2,00,000/- on 22-23.07.2011. Whereas in its reply dated 31.08.2011, the petitioner had clearly mentioned that against the total outstanding amount of Rs.17,68,000/-, he had already made a part payment of Rs.2,00,000/- through pay order no.000878 dated 22.07.2011.

(3.) Learned counsel for the petitioner has submitted that on 31.08.2011, the petitioner had specifically offered to make remaining outstanding amount of Rs.15,68,000/- to the respondent. However, the petitioner had requested for some time for making the remaining payments. But the respondent/complainant with malafide intention was demanding much excess amount than the actual existing liability. Despite on 31.08.2011, the petitioner had offered to pay the actual payable amount. The respondent did not even bother to response to the reply dated 31.08.2011 of the petitioner. Finally the respondent has filed complaint under section 138 of N.I. Act before the learned Magistrate against the petitioner.