Calcutta High Court
Essar Projects Limited And Ors. vs Wpil Limited And Anr. on 24 September, 2001
Equivalent citations: 2002CRILJ4637
ORDER Debiprasad Sengupta, J.
1. This is an application for quashing of a proceeding being case No. C-2537/99 under Section 138/141 of the Negotiable Instruments Act pending in the Court of learned Metropolitan Magistrate, 14th Court, Calcutta.
2. The present opposite party No. 1 filed a petition of complaint before the ld. Metropolitan Magistrate, 14th Court, Calcutta alleging commission of the offence under Section 138/141 of the N. I. Act against the present petitioners. In the petition of complaint it was alleged that in discharge of existing liability arising out of two purchase orders placed by the petitioner No. 1, the petitioner No. 1 company issued two cheques bearing Nos. 02622 dated 31 -12-1998 amounting Rs. 48,04,872/- towards advance of 10 percent of total contractual value and cheque No. 026221 dated 31-12-98 amounting Rs. 22.31.143/- towards payment of initial advance of 10 per cent of total contractual value against the second order. Both the cheques were drawn on Central Bank of India, Corporate Finance Branch, Mumbai in favour, of the opposite party No. 1. The said cheques were presented for encashment and the same was dishonoured by the bank and were returned with the intimation from the petitioners' banker with the remark "insufficient fund". Thereafter demand notice was sent to the drawer of the cheque and on failure to make the payment of the cheque amount the petition/complaint was filed.
3. It should be mentioned here that earlier a revisional application was preferred before this Court with a prayer for quashing of the aforesaid proceeding. The said revisional application was numbered as CRR 2548/2000. The said revisional application was finally disposed of by this Court on 8-3-2001. On perusal of the judgment delivered by this Court it appears that at the time of final hearing of the said application the ld. counsel appearing on behalf of the petitioner did not press the prayer for quashing of a proceeding before this Court and it was prayed that all the points taken in the revisional application might be kept open to be agitated at the appropriate stage of the proceeding.
4. Earlier revisional application was disposed of by this Court on 8-3-2001 and the present revisional application has been moved before this Court on 21-5-2001 with the same prayer for quashing of the same proceeding. It further appears from the order dated 9-5-2001 that the petitioner filed an application challenging the maintainability of the proceeding before the ld. Magistrate on 25-8-2000, i.e. prior to disposal of the earlier revisional application. The said application challenging the maintainability of the proceeding was taken up by the ld, Magistrate and by an order dated 9-5-2001 the ld. Magistrate rejected the said application and fixed the date for evidence. It is at the stage the petitioner has come up before this Court with a prayer for quashing of the proceeding.
5. The main contention of the accused petitioners before this Court as also before the ld. Magistrate is that the accused persons did not issue the cheques to the complainant in discharge of any liability. These two cheques were given to the complainant towards advance payment. It is the submission of the petitioners learned Advocate that since the cheques were issued in discharge of any debt or liability, the same does not come within the purview of N.I. Act. The second contention of the petitioners' ld. Advocate is that the ld. Magistrate in rejecting the petition filed by the petitioners challenging the maintainability of the proceeding, took into consideration a letter dated 15th July, 1999 issued by the accused persons which is not at all a part of the record. It is submitted that the ld. Magistrate committed an error in taking into consideration a document namely, a letter dated 15-7-09 issued by the accused petitioners which is beyond record and the same has not been mentioned any where in the petition of complaint.
6. Mr. Balai Ch. Roy, ld. Advocate appearing for the complainant/opposite party refers to Section 139 of the N.I. Act which runs as follows :-
Presumption in favour of holder.- I shall be presumed, unless the contrary is proved, that the holder of a cheque received the cheque of the nature referred to in Section 138 for the discharge, in whole or in part, of any debt or other liability.
Referring to the said section Mr. Roy submits that it is the accused who is to prove during trial that the cheques were not issued in discharge of any liability. The next submission of Mr. Roy is that the cheque amount was paid by two cheques towards the advance being the 10% of the total amount in discharge of liability as an agreement was entered into by the parties and pursuant to such agreement the accused paid 10% of the amount as advance. Liability arises on promise to pay. It is further submitted by Mr. Roy that the letter dated 15-7-99, which according to the ld. Advocate of the petitioner is beyond record, is very much mentioned in the petition of complaint in paragraph 6 of the complaint. It is further submitted by Mr. Roy from the order sheet it is clear that it is not the ld. Magistrate who took into consideration of the said letter dated 15-7-99, but it is a mere submission of the ld. Advocate appearing on behalf of the complainant. It is finally submitted by Mr. Roy that from the petition of complaint as also other connected papers. It is very much clear that a prima facie case is made Out against the present petitioners and since the earlier prayer for quashing of a proceeding was not pressed before this Court by the petitioners, it will not be proper for this Court to quash the proceeding at this initial stage.
7. I have heard the ld. Advocates appearing for the respective parties. I have also perused the petition of complaint as also other connected papers which are annexed to this application. In my considered view, the allegations made in the petition of complaint clearly make out an offence under Sections 138/141 of the N.I. Act. Considering 1 .he facts and circumstances of the case I find sufficient merit in the submission made by Mr. Roy, ld. Advocate appearing for the complainant/opposite party. The points raised by the petitioner in the present application cannot be decided by this Court at this initial stage of proceeding and the same can only be decided by the trial Court after recording evidence. In my considered view, the ld. Magistrate rightly rejected the application filed by the petitioner challenging the maintainability of the proceeding. I am of the view that this is not a fit case for an interference by this Court. Accordingly the application fails and the same is dismissed.
8. Since this is a proceeding of 1999 I direct the ld. Metropolitan Magistrate, 14th Court, Calcutta to see that the proceeding is expedited and the same is concluded with utmost expedition.