M M MALIK MANAGING DIRECTOR DANY DAIRY AND FOOD ENGINEERS LTD Vs. PREM KUMAR GOYAL ADVISOR HARYANA MILK FOODS LTD

JUDGEMENT

(1.) This order will dispose of the present criminal miscellaneous and two others, (i.e. Cr. M. 11347-M and 11345-M of 1990) brought under Section 482 of the Code of Criminal Procedure, for quashing the complaint Annexure P-4 (in each case) and the proceedings, pending in the Court of the Judicial Magistrate, I Class, Kurukshetra. As the common questions of law and Act are involved in all of them, I will refer to the facts contained in the instant case.

(2.) According to Prem Kumar Goyal, complainant-1, Haryana Milk Foods Ltd.. Pehowa complainant No. 2 is a company and he is its advisor duly authorised to initiate the proceedings. Accused No. 5 M/s. Dany Dairy and Food Engineers Ltd., Saharanpur (the supplier) is a limited company and accused Nos. 1 to 3 are its directors and accused No. 4 is its Manager Accounts.

(3.) Vide work order dated 15-4-1988 complainant No. 2 entered into a contract with the supplier-Company for the supply of evaporator and dryer against payment of Rs. 1,40,00,000.00. Subsequently, on account of modification in design and supply of these goods, the scope of the order was reduced to Rs. 1,24,00,000.00. Against the said work order, the complainant No. 2 advanced Rs. 1,47,43,383/05 paise for facilitation of the manufacture of the goods and their installation and commission according to the committed parameters certified by the Engineers of Damro (USA) and M/s. Evapo Dry (UK). The contract was to be completed and the plant was to be commissioned by 15-11-88. The supplier-Company in order to diminish their- liability regarding repayment of excess amount received by it. issued cheque N0. 300538 dated 13-8-1989 for Rs. 50,000.00 in favour of complainant No. 2 payable by Punjab and Sind Bank, Civil Lines, Saharanpur (the Bankers of the supplier-Company). Complainant No. 2 through its banker. State Bank of Patiala, Saharanpur presented the said cheque, but it was received back on 17-8-89 with the remarks "refer to drawer" which means non-availability of sufficient funds in the account. This information was supplied by the bankers to complainant No. 2 and on receipt of that intimation, complainant No. 1 through a registered letter dated 26-8-1989, issued notice under Section 138(b) of the Negotiable Instruments Act (the 'Act' in brief), making a demand for payment of the said amount. This notice was received by accused No. 1. but no payment was made. The accused had, thus, committed an offence under Section 138 of the Act.