KIRAN DESAI Vs. NAPOLEAN CHEMICALS I PRIVATE LIMITED

JUDGEMENT

(1.) THIS Writ Petition arises out of a complaint filed by the 1st Respondent before the Judicial Magistrate, first Class, Court No. 1, Thane in Criminal Case No. 366 of 1990. In the Complaint the Complainant alleged that he placed Order for supply of Engineering Articles manufactured at the Petitioner s company. It is alleged that as per the contract between the parties the time was stipulated to be the issue of the contract and any delay in the delivery will entail the petitioner to pay a fine of Rs. 3,000/- per day with effect from 2-12-1989. Accordingly, the articles were delivered on 12-12-1989 admittedly with the delay of 10 days. On delivery, certain defects were noticed in the articles. The Complainant also informed the Petitioner that he has spent about Rs. 35,000/- for the rectification of the articles, and he also paid the fine for the consequent delay in supplying the goods for his customers. Accordingly an amount of Rs. 68,000/- was claimed by the 1st Respondent from the Petitioner as compensation for supply of defective machinery and also for delayed supply. Incidently, it may be noted that for a due performance of the contract the complainant had obtained a cheque in advance for Rs. 2,40,000/- drawn on Indian Bank, Andheri West Branch, Bombay dated 6-12-1989 as a precaution that in case the Petitioner failed to perform his part of contract, the Complainant can encash the cheque for realisation of the loss sustained by him. The cheque issued by the Petitioner was also dishonoured but no notice has been sent in compliance of the section 138-B of the Negotiable Instrument Act. It is alleged in the Complaint in para 8 as under: