TMI Blog2013 (2) TMI 28X X X X Extracts X X X X X X X X Extracts X X X X ..... uashing of the complaint, in as much as, all the ingredients of Section 138 of the Negotiable Instrument Act are satisfied. Para 10 of the complaint specifically states that vide legal notice dated 07.07.2010, the complainant company through their counsel called upon the accused persons to make the payment of the amount covered by the dishonoured cheques. The said notice was sent to the accused persons through Regd. A.D. The postal authorities have delivered the notice sent to the accused person through Regd. A.D. In view of the above discussion, it is not a fit case for exercising the jurisdiction under Section 482 Cr.P.C for quashing of the complaint. - Crl. Misc. No.M-31977 of 2010 - - - Dated:- 25-4-2011 - MS. NIRMALJIT KAUR J. Present:- Mr. S.C. Singhal, Advocate for the petitioners. Mr. M.S. Vinaik, Advocate Mr. Deepak Bashta, Advocate and Mr. Gurpreet Singh, Advocate for the respondent. NIRMALJIT KAUR, J. This is a petition under Section 482 Cr. P.C for quashing of the impugned complaint No.3560 of 2010 dated 28.07.2010 filed under Section 138 read with Section 142 of Negotiable Instruments Act and the summoning order dated 28.09.2010. Petitioner no.1, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ai vs. State of Kerala and another passed in Criminal Appeal No.1012 of 1999 and the judgment of Delhi High Court rendered in the case titled as M/s Collage Culture Ors. vs. Apparel Export Promotion Council Anr. passed in Crl. M.C. No.3011/2004. (ii) The respondent has already preferred a complaint under Section 138 of the Negotiable Instruments Act against M/s Liverpool Retail India Limited whose invoices were financed by the respondent and who duly acknowledged the domestic factoring facilities and in response thereto issued the cheques for the whole amount of the invoices. Therefore, the respondent cannot maintain two complaints for same liabilities. (iii) that no notice as per the terms and conditions of the settlement was issued to the petitioners and, therefore, the complaint was not maintainable. Learned counsel for the respondent, on the other hand, submitted that the petitioners have concealed the material facts. The petitioner No.1 i.e the Managing Director had executed an undertaking, wherein, he had submitted that in case, the borrower fails to make payment of the amount outstanding under the facility within a period of seven days after a demand is made by him ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... after a demand is made by you for the said amount you shall have a right to present the cheques issued by the Executant for the said amount. No doubt, the cheques are stated to be mentioned as given towards security as per the undertaking and there is also no dispute that the cheques that were deposited were the same as mentioned in the said Schedule. However, at the same time, we cannot loose sight of the fact that they were submitted in pursuance to the liability, which is apparent from perusal of the same Undertaking given by the Managing Director of the petitioner's firm, which reads as under:- 3. That neither the Executant nor any other authorized representative/official of the Borrower shall issue stop payment instructions to the banker in respect of the cheque/s issued to you, and affirm that the Executant or anybody else authorized by the Borrower shall not intimate the bankers to stop the payment due on the said cheque/s. The Executant agrees to ensure the availability of adequate funds in the bank account of the Borrower on which these cheques favouring Bibby Financial Services (India) Private Limited are issued, and undertake that the bank account shall not be clos ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s M.S. Narayana Menon @ Mani and M/s Collage Culture Ors.(supra) will not help the petitioners while seeking quashing of the complaint under Section 482 Cr.P.C on the said ground. With respect to the second argument that the two complaints cannot be filed for the same liability, also has no merit, in as much as, the respondent, under no circumstances, is trying to recover the amount twice. It is not a recovery suit. While invoking the provisions of Section 138 of the Negotiable Instrument Act, the complainant seeks conviction/punishment of the accused for commission of the said offence. For recovery of the amount, civil proceedings will lie, therefore, the complaint cannot be quashed on the ground that the complaint has also been filed against M/s Liverpool Retail India Limited, who had also issued the cheques for whole amount of the invoices. In view of the undertaking and the agreement referred to above, the petitioners No.2 and 3 cannot claim immunity from the provisions of Section 138 of the Negotiable Instrument Act as they had also issued the cheques while executing deeds of guarantee, guaranteeing to the respondent that its dues under the arrangement with petitioner ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
