DSL ENTERPRISES PVT LTD Vs. BANK OF INDIA

JUDGEMENT

(1.) IN this application filed under section 482 of Cri. P. C. the applicants are praying for quashing and setting aside the order of process passed by the learned Judicial Magistrate, First Class at Pune in Criminal Case No. 154 of 2003 (Old No. 461 of 2000) passed on 28/7/2000 for an offence punishable under section 138 of the Negotiable Instruments Act, 1881 (N. I. Act for short ). It would be useful to set out the relevant facts before examining the merits of the case.

(2.) APPLICANT No. 1-Company has been incorporated under the Companies Act, 1956 with its registered office at Datar apartments, Vakilwadi, Nashik 422 001 and is engaged in the business of production and sale of various electronic equipments. It was formerly known as Datar switchgears Ltd. The applicant No. 1 had entered into an agreement of lease for its business and use shunt capacitors with M/ s. Enarai Finance Ltd. , Mumbai on 30/12/1994 and along with the said agreement the schedule of payment of rental charges was annexed. The first quarterly payment due towards the rental amount had commenced from 3rd April, 1995 and it was at rs. 6,02,850/ -. Due to certain disputes and differences between the parties Enarai Finance Ltd. issued a notice of termination dated 25/8/1997 through its Advocate at mumbai. The Bank of India had granted a cash Credit Facility of Rs. 2 Crores to enarai Finance Ltd. against the security of hypothecation of shunt capacitors and other assets and the said Bank is the Power of attorney Holder of Enarai Finance Ltd. , a non Banking Financial Company incorporated under the Companies Act, 1956 with its registered office at Bhandup, Mumbai. (Power of Attorney executed on 17/11/ 1994 ). The applicant No. 1 - company had issued certain post dated cheques in favour of Enarai Finance Ltd. being the amount of lease rent due and payable in respect of the said shunt capacitors leased out to it and three cheques were of Rs. 6,02, 850/- each whereas the fourth cheque was for Rs. 99,975/ -. Initially the first two cheques were deposited and they were dishonoured and subsequently the remaining two cheques were also dishonoured. The cheque details are as under: <FRM>JUDGEMENT_410_BCR(CRI)2_2007Html1.htm</FRM>

(3.) THE statutory notice regarding the first two dishonoured cheques was issued on 19/7/1999 and Criminal Complaint No. 3581 of 1999 has been filed against the same. Whereas dishonour of the third cheque is the subject-matter of Criminal case No. 5301 of 1999. Writ Petition Nos. 4530 and 4531 of 2006 arise from these two criminal cases. The subject-matter of this application arises from the last cheque dated 3/1/2000 for an amount of Rs. 99,975/ -. It was dishonoured as per the memo dated 8/1/2000 which was received by the complainant on 15/1/2000. The statutory notice under section 142 of the n. I. Act was issued on 20/1/2000 and it was served on the accused on 23/1/2000. As the accused failed and neglected to pay the amount of the dishonoured cheque and other expenses within 15 days of the receipt, criminal Case No. 461 of 2000 (now criminal Case No. 154 of 2003) came to be filed on or about 10/2/2000 and the order of issuance of process under section 204 of cri. P. C. came to be passed on 28/7/2000.