RAMDEV COTSPIN PARTNERSHIP FIRM Vs. PACIFIC COTSPIN LTD.

JUDGEMENT

(1.) Heard. Issue Rule, returnable forthwith. Learned Senior Counsel appearing for Respondents, waives notice. By their consent, the matter is taken up for final disposal.

(2.) By present Writ Petition filed under Articles 226 and 227 of the Constitution of India, the petitioner challenges the common order passed by the Judicial Magistrate, First Class, Court No.2, Akot below Exhs.43 and 54 in Summary Criminal Case No.405/2017 on 17/8/2023, by which the applications filed by the original accused at Exhs. 43 and 54 came to be allowed, and the proceedings are stayed till insolvency resolution in process till final moratorium is reached.

(3.) The petitioner is the original complainant, who filed a complaint under Sec. 138 of the Negotiable Instruments Act, 1881 (hereinafter referred to as "the NI Act" for short), against the respondents. The respondent no.1 is a Company and is arrayed as original accused no.1. Respondent no. 2 is the Chairman-cum-Whole Time Director of the respondent no.1 Company, whereas the respondent no.3 is the Managing Director of respondent no.1 Company. Both are arrayed as original accused nos.2 and 3 respectively and they are responsible and in-charge of the day to day business/affairs of the respondent no.1 Company. It further appears that the respondent nos.2 and 3 had issued cheques dtd. 3/10/2016 bearing Nos.118857 to 118867 drawn on United Bank of India, CIT Road, Kolkata in favour of the present petitioner. All the accused purchased cotton bales from time to time, totaling to Rs.4,34,46,276.00 from 5/5/2016 to 29/6/2016 from the petitioner/complainant. Out of the said amount, the accused paid an amount of Rs.1,78,68,088.00 through RTGS to the complainant. The remaining balance amount was due from the accused persons, however, the complainant took back some cotton bales from the accused, as the accused persons did not certify quality of the same, and that amount is credited in the account of the accused persons. The same is corroborated by the entries in the account of the accused, which shows remaining amount due from them. The complainant therefore, demanded the said amount from the accused and in lieu of that the accused issued 10 cheques signed by the accused no.2 as an authorized signatory and Director of accused no.1 Company towards part payment and for discharge of the legal liability. Thereafter, the petitioner deposited the said cheques with his Banker i.e. Akola Janta Commercial Cooperative Bank Limited, Akot in their current account on 17/12/2016 for clearance. However, all the cheques returned back with memo and endorsement "funds insufficient". The complainant therefore, issued a legal notice to the accused demanding the amount of Rs.1,05,00,000.00, and as the amount was not paid the petitioner filed a complaint under Sec. 138 of the N.I.Act.