AMIT AGARWAL Vs. STATE OF A.P.

JUDGEMENT

(1.) Petitioner in Criminal Petition No. 5330 of 2021 is A.2, and petitioner in Criminal Petition No.5332 of 2021 is A.6, in C.C. No.321 of 2019 on the file of the III Additional Judicial Magistrate of First Class, Tirupati.

(2.) A private complaint was filed by 2nd respondent herein before the learned Magistrate against the petitioners and others and the same was taken cognizance by the learned Magistrate as C.C.No.321 of 2019 for the offence punishable under Sec. 138 of the Negotiable Instruments Act, 1881 (for short, -the NI Act-). Brief facts of the case are as follows: Complainant is a registered company under the provisions of the Companies Act, 1956 with its registered office at Renigunta-Kadapa Road, Karakambadi, Tirupati. It is in the business of manufacturing and sale of Industrial and Automobile batteries both in India as well as various countries of India ocean Rim. A.1 is a partnership and A.2 to A.7 are its Partners, involved in the business of recycling of used lead acid batteries. Complainant entered into an agreement on 15/3/2018 with accused permitting the accused to collect used batteries and to recycle used lead batteries from the company company and supply re-melted lead ingots at the ratio of 62% for Automotive used batteries collected from franchisees/customers and 60% for Industrial used batteries collected from telecom industrial customers, out of the total volume of used batteries collected on job work basis. As per the agreement, the complainant has to pay a sum of Rs.10,000.00 per metric ton of re-melted lead for conversion of used lead batteries by the accused to supply re-melted lead ingots to the complainant company. After completion of contract documentation, accused started collecting the used lead acid batteries from the premises of franchisees/dealers of complainant from 24/3/2018. The accused collected 2,999 MTs of used lead acid batteries and is supposed to supply 1,837.710 MTs of re-melted lead to complainant company. The accused supplied 1,144.325 MTs to the authorized smelter of complainant to manufacture pure lead and supply the same to the complainant company for manufacturing new batteries. The accused has not supplied the balance re-melted lead ingots of 693.385 MTs to the complainant company. The officials of complainant company were surprised to know that the accused have jointly and severally, criminally, dishonestly and fraudulently conspired and sold the remelted lead ingots belonging to the complainant company, which is supposed to be supplied to the complainant company, to third party buyers and amassed crores of money dishonestly and wrongfully and cheated the complainant company by breaching the contract. The accused has to supply quantity of 730.640 MTs of Re-melted Lead ingots to complainant company, which is sold illegally and unauthorizedly by the accused in open market. The accused promised to supply the said quantity after some days. A.5, who is authorized signatory of A.1, issued cheques bearing Nos.000194 to 000205 drawn on HDFC Bommasandra Industrial Area, Jigni, Bangalore for Rs.12.00 Crores in favour of the complainant company, being the value of re-melted ingots to be supplied to the complainant company, and A.2 to A.7 requested the complainant company to present the cheques after 5/12/2018 and all the accused assured their commitments for and on behalf of A.1 company to the complainant company. On 17/9/2018, the accused gave post dated cheques bearing Nos. 000194 to 000205, dtd. 5/12/2018 to the complainant company with an understanding that they would supply re-melted lead ingots weekly once, the worth of re-melted lead to each cheque and would get back the cheques worth of remelted lead supplied and will complete the supply of total balance of 730.640 MTs by 5/12/2018. From 17/9/2018, the accused supplied only 42 MTs of remelted lead ingots to the complainant company and inspite of several reminders and requests, the accused haven ot supplied the balance ingots. A.4 is also running lead recycling industry in the name of Chetan Industries. A.2 to A.7 colluded together and got supplied re-melted lead ingots through A.4's company and sold the same to third parties. Complainant company presented the above mentioned cheques in State Bank of India, SME branch, Tirupati on 6/12/2018, but the same were dishonoured with endorsement -payment stopped by drawer- and the same was communicated vide Memos dtd. 7/12/2018. After issuing the statutory notice under Sec. 138 (b) of the Negotiable Instruments Act, 1881, as the accused did not pay the amount covered under the dishonoured cheques, the present complaint came to be lodged.

(3.) Learned Senior Counsel Sri Y.V.Ravi Prasad appearing for the petitioners contended that petitioners/A.2 and A.6 are neither managing the affairs of A.1 firm nor signatory to the cheques which were issued in the name of the firm; that petitioner/A.6 had submitted her resignation on 30/3/2018 and the same was accepted by the existing partners vide their letter dtd. 31/3/2018; that the cheques in question were issued on 5/12/2018 and as on the date of issuance of the cheques, petitioner/A.6 was not at all partner of A.1 firm. He further contended that the cheques were issued as security. Apart from the said contention, the learned Senior Counsel relied on Sec. 141 of the NI Act and contended that a reading of the entire complaint goes to show that there is no compliance of Sec. 141 of the NI Act. Learned Senior counsel also relied on Sec. 202 CrPC which mandates that the Magistrate shall, in a case where the accused are residents of a place beyond the area in which he exercises jurisdiction, postpone the issuance of process against the accused so as to enquire into the case himself or direct an investigation by a police officer. On the said grounds, the learned Senior Counsel contended that the impugned proceedings are liable to be quashed.