KIRTI PREM RAJ JAIN Vs. STATE OF RAJASTHAN

JUDGEMENT

(1.) THESE five revision petitions under section 397/401 of the Code of Criminal Procedure are directed against the order of the 'Additional Chief Judicial Magistrate (Fast Track), Bikaner whereby on different dates he has read over the accusation to the petitioners for offence under Section 138 of the Negotiable Instruments Act.

(2.) IT appears that 'Esskay Remedies Ltd.' (hereinafter referred to as 'ERL') having its Head Office at Baroda by executing an agreement appointed M/s. Om Arham Marketing Company 'Carrying and Forwarding Agent' (hereinafter referred to as 'C and F Agent') of the manufacturer for the sale of its product in the Northern Rajasthan. The petitioner herein Kirti Jain is the Managing Director and Sunil and Hitesh are the Directors of ERL. The said company is now carrying on its business in the name of M/s. Nissan Formulations Ltd. M/s. Om Arham Marketing Company (hereinafter referred to as 'the complainant') filed a complaint against the EPL, M/s. Nissan Formulations Ltd. and Kirti Jain and other partners in the Court of Judicial Magistrate, Bikaner for offence under Section 138 of the Negotiable Instruments Act. M/s. Nissan Formulations Ltd. and EPL are hereinafter referred to as 'the accused company'. It is averred that accused company by executing the agreement dated 26 -11 -1998 engaged the complainant company as C and F Agent. As per the terms and conditions, the complainant gave a demand draft to the accused company for a sum of Rs. 8,00,000 as a cash security. However, the accused company did not indulge into the business with them and terminated the agency on 5 -4 -1999. Cheques were issued in the sum of Rs. 2,00,000 in favour of the complainant company as refund of cash security. There is allegation of interpolation in the date of issue of cheques. When the cheques were presented before the Bank, they were returned with endorsement 'referred to drawer'. The learned Magistrate has taken cognizance against the petitioners for offence under Section 138 of the Negotiable Instruments Act.

(3.) THE learned counsel has placed reliance on the decision of the Apex Court in Kusum Ingots and Alloys Ltd. v. Pennar Peterson Securities Ltd. [2000] 34 SCL 88. On the other hand, it is submitted by the learned counsel for the complainant that the contention is premature as it will be open for the accused company to place the material in this regard before the learned Magistrate. It is also submitted by the learned counsel that BIFR has not completely restrained the company from transferring the assets. On the contrary, reading of the order of BIFR shows that since the unit is operating the current assets may be utilised to the extent necessary for maintaining the day -to -day operations. Thus, the relevant material is required to be placed before the trial Court and the decision will be taken in the facts and circumstances of the case.