MANISH BAJAJ Vs. MAZA CONSTRUCTION PVT. LTD.

JUDGEMENT

(1.) THE appellant herein filed a criminal complaint under Section 138 of the Negotiable Instruments Act (for short the N.I. Act), 1881 before the learned Additional Chief Judicial Magistrate, Indore, His case was that he was doing business in the name and style of Manish Bajaj, Bajaj Construction Pvt. Ltd, for doing fitting of PVC pipes. The respondent No. 1 is a registered company and respondent Nos. 2 and 3 are the Directors. From the firm of the appellant respondent Nos. 1,2 and 3 purchased PVC pipes fitting and other articles and towards payment, respondent Nos. 2 and 3 issued cheque of Rs. 1,20,000/- of State Bank of Indore Branch, Y.N. Road, Indore. The said cheque was produced in the Bank by the appellant on 5.4.1997 for encashment, but same was returned back by the Bank with a note that the respondents had stopped the payment. Learned Magistrate registered the complaint and issued notices to the respondent Nos. 1, 2 and 3, Respondents appeared before the Court and denied the charges. Their case was that goods supplied to them were not as per sample shown to them, therefore, they stopped the payment and they were ready to return the goods (PVC pipes fitting).

(2.) BEFORE the Trial Court following were the admitted facts:

(3.) LEARNED Counsel for the appellant has submitted that the learned lower Appellate Court has found all the facts proved regarding transaction, issuance of cheque, dishonour of cheque, service of statutory notice and its reply, but set aside the judgment of the trial Court only on the ground that on the date of presentation of cheque by the appellant in the Bank there was sufficient fund in the account of the respondent Nos. 1, 2 and 3 and cheque was not dishonoured, because of insufficiency of the fund, therefore, the offence punishable under Section 138 of the Negotiable Instruments Act is not made out against the respondent Nos. 1,2 and 3. The learned lower Appellate Court has not believed the explanation given by the respondent Nos. 1,2 and 3 that goods supplied by the appellant were not of the same foods, which was shown in a sample to them. The learned Courts below has given specific finding on this count that if goods were not of the specific specification as agreed between the appellant and respondent Nos. 1,2 and 3, the respondents could have complained this fact before issuance of cheque as well as before presentation of cheque by the appellant in the Bank instead of making stop payment. The Court below have given specific finding that the defence taken by the respondent Nos. 1, 2 and 3 was after thought. The learned Counsel for the appellant has placed reliance on a judgment rendered by Supreme Court in Goa Plast Pvt. Ltd. v. Chico Ursula D'Souza, I (2004) BC 246 (SC)=VII (2003) SLT 247=AIR 2004 SC 408, and submitted that if the cheque was issued in discharge of debt or other liability, which is legally enforceable and if same is dishonoured, because of stop payment or insufficient fund or some other reason, the drawer of the cheque would be liable for commission of offence under Section 138 of the Negotiable Instruments Act.