SAMRAT TRACTORS Vs. BHOPAL TRACTORS

JUDGEMENT

(1.) This petition is under Section 482 of Cr.P.C. for quashing order dated 1.8.2008 passed by JMFC, Gwalior, in Criminal Case No.7196/2008, whereby cognizance under Section 138 of the Negotiable Instruments Act (in short the Act) has been taken against the petitioner and summon has been issued for his appearance. The petitioner has also challenged the order before Third ASJ, Gwalior, in Criminal Revision No.53/09 which has been dismissed.

(2.) The facts giving rise to this petition in brief are that respondent/complainant has filed a complaint under Section 138 of the Act alleging that petitioner gave cheque No.576239 dated 1.8.07 of Rs. 17,00,000/- in connection with purchase of tractors and spare parts. When the respondent submitted the aforesaid cheque, the same was dishonoured. A notice was given to the petitioner, but neither it was replied, nor the payment was made. On the basis of the complaint, the learned JMFC, Gwalior, has taken cognizance under Section 138 of the Act and issued summon against the petitioner for his appearance. This order was challenged on behalf of the petitioner in the Court of Third ASJ, Gwalior, in Criminal Revision No.53/09 which has been dismissed vide order dated 30.5.09. Being aggrieved, the petitioner has knocked the doors of this Court for invoking the extraordinary powers of this Court under Section 482 of Cr.P.C.

(3.) It is submitted by learned counsel for the petitioner that petitioner/ firm was registered in the year 2002 in the name of Samrat Tractors and also the authorized dealer of the Sonalika Tractor. The respondent is stockiest of Sonalika Tractor and only a carrying or forwarding agent of Sonalika Tractor. As per the routine practice, no stockiest can supply any tractor without the consent of the Area Manager, D.G.M. or G.M. to the dealer and for supplying the tractor, the stockiest has to keep a security from the dealer, and hence, the petitioner gave blank cheques and two stamp papers to the respondent in the month of October, 05 for keeping the same as security. Ashish Shrivastava, who was the Area Manager, and thereafter Dinesh Agrawal, who is the proprietor of respondent/firm, supplied the tractors for which demand drafts were received by M/s. International Tractors, Hoshiyarpur. As the godown of the petitioner is at Lucknow which is distant from Hoshiyarpur, hence, after receiving the demand drafts, the tractors were sent to the godown of the complainant. It is the general practice that no demand draft in the name of stockiest is accepted by the Sonalika Tractors and only demand drafts in the name of Sonalika Tractors are accepted and the commission of the stockiest is given by the Sonalika Tractors. It is further submitted that in the routine course of his business, the petitioner gave five blank cheques to the respondent for keeping the same as security, as the tractors were supplied by the stockiest and its payment was made in the form of DD to Sonalika Tractors. The cheques, which were kept as security, were not given in lieu of any purchase made by the petitioner from the respondent. This is one of the reason that is why complainant has not mentioned any tractor number, chasis number or engine number of the tractors in the complaint. It is further submitted that in the month of September, 2006, the stockiestship of the respondent was closed by the Sonalika Tractors on account of his misconduct. Therefore, the petitioner has requested the complainant to return those cheques alongwith stamps, but the complainant did not return those cheques and lodged this complaint. It is further submitted that since there is not direct dealing of the petitioner with the respondent and the cheque has been given by the petitioner to respondent/complainant for keeping the same as security, therefore, no offence is made out. The respondent misled the Court by saying that notice was not replied. The reply of notice was given by the petitioner through his counsel on 15.10.2007. It is further submitted that alleged cheque was given at Lucknow and no transaction has taken place at Gwalior, therefore, the JMFC, Gwalior, has no territorial jurisdiction to entertain the complaint. It is further submitted that prima facie no offence under Section 138 of the Act is made out, therefore, the proceeding before the JMFC, Gwalior, is an abuse of process of law. It is prayed that proceeding of Criminal Case No.7196/2008 pending in the Court of JMFC, Gwalior, be quashed.