NIRMAL Vs. MAHADHAN PHOSPHATE PVT. LTD.

JUDGEMENT

(1.) Shri Abhijitsingh Chouhan, learned counsel for the petitioner. Shri Sunil Yadav, learned counsel for the respondents.

(2.) This is a petition under section 482 of the Code of Criminal Procedure, 1973 (for short 'the Code') praying for quashment of criminal complaint preferred by M/s Mahadhan Phosphate Pvt. Ltd. (respondent No.1) against petitioner Nirmal Thaker and respondents No.2-5 for offence under Section 138 of the Negotiable Instruments Act, 1881 with regard to alleged dishonour of cheque issued on behalf of respondent No.1 under the signatures of respondent No.2 for a sum of Rs.40 lacs.

(3.) As per averments made in the complaint, M/s. Mubarik Steels Pvt. Ltd. (respondent No.2) under an agreement to sale dated 30.06.2012 agreed to sale its steel plant situated at Dewas mortgaged with bank of Baroda for a consideration of Rs.1,61,00,000/- in favour of M/s Mahadhan Phosphate Pvt. Ltd. (respondent No.1) and that as a part consideration, a cheque of Rs.35 lacs was issued by respondent No.1 in favour of respondent No.2 which was credited in the account of respondent No.2. It was further averred that as respondent No.2 could not obtain NOC's from various Departments, therefore, sale could not materialise and the amount of Rs.35 lacs paid by respondent No.1 to respondent No.2 was agreed to return with interest and accordingly, a cheque of Rs.40 lacs was issued on behalf of respondent No.2 under the signatures of respondent No.3 (Asif Noor Mohd. Gauri) with the consent of other Directors including the petitioner in favour of respondent No.1. The further averments have been that the cheque in question on being presented before the concerned bank bounced because of insufficient funds and that the amount under the cheque was not paid despite statutory notice. Respondent No.1/complainant also averred in his complaint that respondent No.2 M/s. Mubarik Steels Pvt. Ltd. along with its Directors including petitioner Nirmal Thaker are responsible for day-to-day business of the company and, Thakre liable to be punished under Section 138 of 'the Act'.