SWAMINATHAN Vs. STATE OF HARYANA

JUDGEMENT

(1.) TAMILNADU Tubes and its managing partner, Shri Swaminathan, have come to this court in this petition under Section 482 of the Criminal Procedure Code, 1975, for quashing of complaint dated May 11, 1990, annexure P-1.

(2.) THE complainant, Parkash Tubes Limited, who is engaged in manufacturing of GI steel and black pipes and other items having its factory at Parkash Nagar, Bahadurgarh, had appointed Tamilnadu Tubes as the consignee agent. As per the terms of the agreement, the complainant was to send the goods to the petitioners on consignment basis which were to be sold in the State of Tamilnadu at the best prices and after deducting the expenses incurred by the accused for handling the goods, they were to remit the balance price to the complainant at its registered office at Bahadurgarh. The complainant sent goods worth Rs. 3,72,170 to the petitioner in the month of February, 1990. The petitioners after deducting their commission on the sales sent four cheques amounting to Rs. 3,28,137 as detailed* in para 6 of the complaint. All these cheques had been drawn on the Catholic Syrian Bank Limited, Madurai. The accused had also sent sale memos confirming the sale of the goods arid statements showing the deductions and the amounts payable to the complainant. They had also agreed ,to clear the amounts on or before February 28, 1990. The cheques were, thus, issued for discharging the debt payable by the petitioners to the complainant-company towards the sale price of the goods sold. Cheque No. 466702 for Rs. 50,000 and cheque No. 466703 for Rs. 50,000 were returned unpaid by the bankers along with the advice annexed as annexure-V with the complaint. On receipt of the above advice, the complainant served notices upon the petitioners to make the payment in lieu of the dishonoured cheques within 15 days. These notices were duly received and replied to by the petitioners. However, the amounts were not paid. That on the dates of issuance of the cheques and their presentation, there was no sufficient balance in the account of the petitioners to enable the bankers to honour the cheques. The petitioners had thus committed an offence punishable under Section 138 of the Negotiable Instruments Act, 1881.

(3.) THOUGH the petitioners challenge their liability to make the payment as the debt was not due, they have also challenged the prosecution on the basis that no of fence under section, 138 of the Act had been committed.