MEKSERVERS PVT LTD Vs. HCL INFOSYSTEMS LTD

JUDGEMENT

(1.) By this petition the Petitioners seek quashing of summoning order dated 11th June, 2010 passed by the Learned Metropolitan Magistrate and the subsequent proceedings in complaint case No. 1838/1/2010 under Section 138 Negotiable Instruments Act (in short NI Act) pending in the Court of Ms. Surabhi Sharma Vats, Learned Metropolitan Magistrate, New Delhi. The facts giving rise to the present petition according to the Petitioners are that the Petitioners placed certain orders on 4th January, 2009 from Orissa for supply of computer systems and its accessories namely CISCO router to the Respondent company. Thereafter, on 22nd January, 2010 the Petitioner No. 1 informed the Respondent that due to recession the customer had cancelled the order and all the equipments were lying with the Petitioners except two equipments. The Petitioner requested the Respondent to take the sales reversal and e-mails in this regard were exchanged. According to the Petitioner the Respondent company without appreciating the request of the Petitioners with mala-fide intention filled up the cheque dated 17th February, 2010 with an outstanding amount of Rs. 3,76,986/- without bringing the facts to the notice of the Petitioners and deposited the same with the bank. The cheque was dishonoured. On 18th March, 2010 the Petitioners for the first time came to know about the dishonour of the cheque on receipt of a legal notice dated 18th March, 2010 sent by the Respondent company. On receipt of the legal notice the representatives of the Petitioner No. 1 made correspondences and exchanged telephone conversation with the authorized representative of the Respondent company, for taking away the unsold materials and to pay the outstanding rent amount due to the Petitioner No. 1. According to the learned counsel for the Petitioner admittedly the cheques were issued as security on the basis of business transactions and the Respondent had duly acknowledged the future cancellations of orders placed by the Petitioners customer. Thus, it is prayed that the abovementioned complaint filed by the Respondent be quashed as the cheques were issued as security and there is no legal liability due towards the Petitioners. Reliance is placed on M.S. Narayana Menon Vs. State of Kerala & Anr.,2006 JCC 198 and Venkatesh Bhat Vs. Rohidas Shenoy,2010 3 JCC 244.

(2.) Thus, the contention of the Petitioner is that since the cheque was given as a security and not in discharge of the legal liability and the Petitioner company had requested for sale reversal, the Petitioners were not liable to pay the cheque amount, hence the order of summoning and the proceedings pursuant thereto and the complaint be quashed. It may be noted that the contention of the Petitioner whether the cheque was not issued in discharge of a legal liability and was issued as a security can be ascertained only after the parties lead their evidence. This issue cannot be decided in a petition under Section 482 Cr.P.C. merely on the basis of the affidavits filed by the Petitioners. Both the Respondent and the Petitioners would have to lead evidence to show their case before the Learned Trial Court. Needless to say that the Respondent in his complaint has asserted that the Petitioners tendered to the Respondent cheque bearing No. 213244 dated 17th February, 2010 for a sum of Rs. 3,76,986/- drawn on Union Bank of India, Bhubnenshwar at the registered office situated at Delhi in discharge of part liability. Since it is the assertion of the Respondent that the cheque was issued in discharge of the liability, the Respondent is entitled to lead evidence in this regard during trial. Reliance of the Petitioner on Ms. Narayana Menon and Venkatesh Bhat is misconceived, as the two decisions were rendered after the complaints were decided by the Learned Trial Court and the matters were taken in Special Leave Petitions on dismissal of the appeals and revision petitions. Thus, on appreciation of evidence led the Courts came to the conclusion that the cheques were not issued in discharge of legal liability but as security. Consequently, the petition and application are dismissed.