ANIL KUMAR PAROLIA Vs. MOHAMMAD SHAFIQUE KHAN

JUDGEMENT

(1.) The instant application referred under Ss.401 and 482, Cr. P.C. is with a view to quash a proceeding being C-2136 of 1990 under S. 138 read with S. 141 of the Negotiable Instruments Act hereinafter referred to as the N.I Act pending in the Court of Metropolitan Magistrate, 5th Court, Calcutta.

(2.) The case of the petitioner is that he is one of the Directors of the Company M/s. Guru Ispat Ltd., having its office at Park Street, Calcutta. It carries on business of manufacturing steel products and for the said purpose they are required to import steel materials from abroad. In March 1990, the company imported 193.080 M.T. of sheet and in order to avoid congestion in the port due to customs clearance; the port authorities allowed the company to discharge the goods through boats. The company accordingly, entered into an agreement with M/s. Golden River Transport Corporation, of which the complainant O. P. No. 1 is the Managing Partner. The agreement was that the transport company would obtain release of the cargo from the vessel and store the same in two barges. It was also agreed that they would take all precautionary measures to keep the goods in safe condition until customs clearance is over. The amount, rental charges for this intermediate storage was settled at Rs. 6.35 per Metric Ton per day. On 9-3-90 the transport company accordingly took discharge of the goods in good condition and kept in custody in two barges belonging to them. As there was some delay by the custom authorities in effecting clearance, the company requested the transport company from time to time through letters to take proper care of the goods since they are of high value.

(3.) At the request of the transport company the petitioner paid a sum of Rs. 1,00,000 (Rupees One Lakh) in cash on account of payment towards storage charge. After the customs clearance was given a cheque for Rs. 1,00,000 (Rupees One Lakh) was issued by the petitioner's company through their banker in favour of the transport company. In the process of unloading the cargo for further storing in the warehouse, it transpired that due to leakage in one of the barges, salt water entered into the same causing considerable damage to the metal sheets. This damage has been ascribed by the petitioner to the negligence of the transport company. Accordingly, they brought the fact to the knowledge of O. P. No. 1 and requested to come to an amicable settlement. Simultaneously the company also asked its banker not to honour the Cheque earlier issued by them in favour of the transport company till a survey is effected by a Government approved Charter Engineer. It revealed that 30% of total materials were damaged and the loss was to the tune of Rs. 2.85 lakhs. A debit note for the said amount dated 10-8-90 was raised by the petitioner's company against the complainant's firm. As all efforts to make amicable settlement failed the petitioner's company filed a suit being 21 of 1991 in this Court for a decree of the said amount.