SIDHESWAR ENTERPRISES & ANOTHER Vs. DEEKAY MOTORS

JUDGEMENT

(1.) This petition is directed against the order dated 5.5.2015, rendered by the learned Chief Judicial magistrate, Mandi in Cr. Misc. Application No. 130-IV of 2015 in Cr. Complaint No. 21-III of 2012.

(2.) Key facts, necessary for the adjudication of this petition are that the respondent-complainant (hereinafter referred to as the complainant) has filed a complaint under Section 138 of the Negotiable Instruments Act against the petitioners-accused (hereinafter referred to as the petitioners). The respondent is running the business of sale and repair of Hero Honda Motor Cycles and the petitioner No. 1 through petitioner No. 2 is sub-dealer of the complainant. According to the averments made in the complaint, there was total consideration of Rs. 43,14,615/- to be paid by the petitioners to the complainant. The petitioner No. 2 has signed cheque for sum of Rs. 10,00,000/-. It was dishonoured for the reason "exceed arrangements when presented". The complainant has also led the evidence. The petitioners have also examined one witness in defence. Thereafter, the case was listed for documentary evidence and last opportunity was granted to the petitioners. In the meantime, the petitioners have moved an application under Section 311 Cr.P.C. for recalling of witness and placing on record certain documents. The application was dismissed by the learned Chief Judicial Magistrate, Mandi on 5.5.2015. Hence, this petition.

(3.) The agreement was entered into between the parties vide Ext. CW-1/D. The petitioners have duly signed the cheque Ext. CW-1/B for sum of Rs. 10,00,000/-. It was dishonoured for the reasons; "exceed arrangements when presented". The case of the petitioners is that the petitioners had disclosed to the counsel that he was working as commission agent for the complainant from 2003 till March, 2007 and was receiving commission for the sale of motorcycles. No bill was ever issued by the petitioners towards sale of motor cycles and the billing of the firm was started only on 26.3.2007 through letter dated 31.3.2005. According to the petitioners, there was ambiguity between two accounts statements supplied by the complainant and the documents Ext. A to K were necessary to decide the real controversy between the parties. It is specifically averred in the reply to the application that the plea now proposed to be taken was neither taken by him in examination under Section 313 Cr.P.C. nor put to complainant's witness and accused was estopped by his own act, deed and conduct to take such a plea.