BELLPOLY MOULDERS PVT LTD Vs. SUNLIGHT AEROSOL

JUDGEMENT

(1.) The present revision petition is filed under Sec. 397 of Cr.P.C. for setting aside the judgment dtd. 31/1/2017 passed by learned District and Sessions Judge in Crl. Appeal No. 54439/2016 thereby upholding judgment dtd. 26/11/2015 and order of sentence dtd. 31/3/2016 passed by learned metropolitan magistrate (N.I. Act), West District, in CC no. 194/1/12 under sec. 138 of the Negotiable Instruments Act, thereby convicted the petitioner/accused and sentenced him to undergo simple imprisonment for a period of four months along with payment of Rs.2,00,000.00 as compensation to complainant and in default thereof further simple imprisonment of three months.

(2.) Case of complainant/respondent, inter-alia, is that it is a proprietorship firm, engaged in the business of silicon spray etc., filed a criminal complaint bearing No. 194/1/12 before the learned Metropolitan Magistrate against the petitioner/accused alleging that a against outstanding liability, the accused/petitioner issued a cheque bearing No. 609424 dtd. 5/1/2012 for Rs.1,00,000.00 drawn on Allahabad Bank, Vasundhra, Ghaziabad. The said cheque on presentation was dishonoured with the remarks "Exceeds arrangements". Thereafter respondent sent a legal notice dtd. 25/1/2012 to petitioner and same was replied and when no payment was received from petitioner, complainant filed the complaint in question.

(3.) Case of petitioner is that complaint is not maintainable under sec. 138 and 141 of NI Act as complainant is neither proprietor of M/s Sunlight Aerosol, New Delhi nor Shri Zile Singh is authorized person to file the complaint, nor complainant filed any document on record in support thereof. Moreover, no legal notice was issued to drawer of the cheque i.e. M/s Bellpoly Moulders Pvt. Ltd. as mandatorily required u/s 138(b) of the Act. In addition to above, no notice u/s 251 Cr.P.C. has been framed by learned trial court against drawer of the cheque i.e. M/s Bellpoly Moulders Pvt. Ltd. but against Sanjiv Kapoor in his individual capacity. The goods supplied by complainant were of sub-standard quality and contrary to their own quotation and ISI specification which resulted in rejection of the goods of petitioner by their buyers. Hence, there was no criminal liability of petitioner which could be fastened u/s 138 of NI Act. Moreover, complainant itself admitted that it supplied the goods irrespective to its own quotation and against ISI standard. The complainant failed to make any averments against Shri Sanjiv Kapoor as required under sec. 141 of the NI Act, hence the complaint is not maintainable and is liable to be dismissed summarily.