VOLTAS LIMITED Vs. HIRALAL AGARWALLA

JUDGEMENT

(1.) By this revisional application the petitioners have challenged the order dated 1st March 1990 passed by the Learned Metropolitan Magistrate, 9th Court, Calcutta in case No. C/1930 of 1989 u/s 138 of the Negotiable Instruments Act, whereby the learned Magistrate rejected the petition filed by the petitioners praying for dropping the proceeding on the ground of maintainability.

(2.) The facts of the complaint case as disclosed from the copy of the complaint petition dated 23rd August 1989, appended to this revisional application may be summarised as follows: - The opposite party as complainant filed the said complaint case in the capacity of the Secretary, Titagarh Steels Limited. The complaint petition goes on to say that accused petitioner No. 1 is a Public Company with its registered office at 19, J. N. Heredia Marg, Volkart Building, Ballard Estate, Bombay-38 and Calcutta Office at Gillander House, N. S. Road, Calcutta-1. Accused petitioners No. 2, 3 and 4 are Chairman, Vice-Chair-man and Secretary of accused petitioner No. 1. Accused petitioner Nos. 5 and 7 are working for gain in the said company at its Calcutta Once and accused petitioner No. 6 is the Divisional Manager (Industrial Machinery Division) of the said company and he sits in the registered office at Bombay. According to the complaint, all the accused petitioners were and are in charge of and responsible for the day-to-day conduct of the business of :accused petitioner No. 1. The complaint's company purchased two machines from the accused petitioner No. 1 on full payment thereof to the tune of Rs. 15,46,780.00. The said machines were not working properly due to some inherent defects and so a settlement was arrived at by and between the complainant's company and the accused petitioners which was recorded in a minute signed by accused Nos. 5 and 6 on behalf of accused No. 1 on 12.7.89 and as per said settlement the accused petitioners agreed to return 90% of the total price of the said machines. In terms of the said settlement, the accused issued an A/c Payee Cheque bearing No. 329985 dt. 27.7.89 in favour of the complainant's company for a sum of Rs. 14,12,996/-drawn on the Bank of America, India Exchange Place, Calcutta. The said cheque was duly presented for encashment through the banker of the complainant's company, viz. The State Bank of Bikanir and Jaipur, Park Street Branch, Calcutta within its validity period. But the said cheque was returned being dishonoured by non-payment with the remark "Referred to Drawer" on 1.8.89. This fact of dishonouring the cheque was brought to the notice of the accused by Sri R. L. Gaggar, Solicitor and Advocate of complainant's company by his letter dt. 9.8.S9 wherein he requested the accused to make full payment of the said cheque failing which it was intimated that legal consequences would follow. The accused received the said notice but in order to avoid their criminal liability u/s 138 of the Negotiable Instruments Act, started making wild, frivolous and contradictory statements in their letters and raised some false and flimsy grounds which were false and false within their knowledge. The accused failed and neglected to pay the aforesaid amount within the stipulated period as contemplated u/s 138 of the Negotiable Instruments Act as amended by the Banking, Public Financial Institutions and Negotiable Instruments Laws (Amendment) Act 1988..

(3.) The learned Chief Metropolitan Magistrate Calcutta took cognizance of the offence and thereafter transferred the case to the court of the learned Metropolitan Magistrate, 9th Court for disposal before whom the accused petitioners prayed for dropping the proceeding and the learned Magistrate by his impugned order rejected that prayer of the accused petitioners.