EREC ENGG CO Vs. YADUVANSHI ENGG WORKS

JUDGEMENT

(1.) This is a petition under Section 482 Cr.PC filed by the accused seeking quashment of the criminal complaint and all subsequent proceedings taken thereon.

(2.) In the petition under Section 482 Cr.P.C., it was alleged by the accused petitioners that they had placed on order on 8.7.1995 for supply of material with the respondent and again on 18.7.1995, had placed an order with the respondent. It was alleged that vide letter dated 28.7.1995, the respondent had acknowledged the receipt of both the orders and had shown his inability to supply the goods because of financial crisis and asked the petitioners for 100% advance with regard to the first order and 60% advance in respect of second order. It was alleged that the respondent requested for issuing cheques at the earliest in order to purchase the material and to deliver the goods. It was alleged that on 14.8.1995, the petitioners felt sorry to inform that the first cheque dated 2.8.1995 for Rs. 12,200/- with regard to the delivery of first order was returned by the bank and in lieu thereof, the petitioners sent demand draft and requested the respondent to send back the cheque and also the receipt of the demand draft. It was alleged that on 16.8.1995, the petitioners sent the other cheque for Rs. 40,000/- towards 60% advance for the second order. It was alleged that since nothing was heard from the respondent, the petitioners cancelled both the orders, including second order for which 60% advance amounting to Rs. 40,000/- had already been sent by cheque. It was alleged that the petitioners asked the respondent to return both the cheques and in the meanwhile the payment of the cheque dated 16.8.1995 for Rs. 40,000/- was also stopped. It was alleged that even subsequently the petitioners had been writing to the respondent to return the cheque for Rs. 40,000/-. It was alleged that as per the allegations made in the criminal complaint, the respondent had deposited cheque for Rs. 40,000/- with the bank, which was dishonoured and the complainant had issued notice dated 13.10.1995 (information was received by the complainant about the dishonour on 30.9.1995). It was alleged that in fact petitioners had not received any notice regarding the dishonour of the cheque. It was alleged that the petitioners again requested the complainant to return back the cheque on account of non-supply of the material. It was alleged that the information about the filing of the criminal complaint was received by the petitioners prior to the next date of hearing i.e. 6.11.1996 and it transpired that the complainant had filed the complaint on 20.11.1995. It was alleged that since the petitioners had cancelled the orders, the petitioners had rightly ordered stoppage of payment of the cheque for Rs. 40,000/- It was alleged that no case under Section 138 of the Negotiable Instruments Act, was made out against the petitioners, as the petitioners were not liable to pay Rs. 40,000/- to the complainant. It was accordingly prayed that the criminal complaint summoning order and all subsequent proceedings taken against the petitioners be quashed.

(3.) While issuing notice of motion, vide order dated 26.11.1997, learned Magistrate was directed not to pronounce the final order. Subsequently, petition was admitted. No reply on behalf of complainant respondent has been filed.