Delhi High Court
Amit Poddar vs State & Ors. on 2 August, 2010
Author: S.L.Bhayana
HIGH COURT OF DELHI AT NEW DELHI
Crl. M.C. No. 2450/2008
Date of Decision: 02.08.2010
Amit Poddar ... Petitioner
Through: Mr. D.K. Singh, Advocate
Versus
State & Ors. ... Respondents
Through: Ms. Gaganpreet Chawla,
Adv. for respondent No.2
CORAM:
HON'BLE MR. JUSTICE S.L. BHAYANA
1. Whether reporters of local paper may be allowed to
see the judgment? Yes
2. To be referred to the reporter or not? Yes
3. Whether the judgment should be referred in the
Digest? Yes
S.L. Bhayana, J.
This petition has been filed by the petitioner u/s 482
Cr.P.C. with the prayer that the summoning order dated
28.2.2008 passed by learned trial Court and the
proceedings of complaint case No. 638/1 dated 28.2.2006
under section 138 of the Negotiable Instruments Act (in
short 'N.I. Act') P.S. Connaught Place, Delhi, be quashed.
2. The brief facts of the case are that the petitioner had
purchased a unit of six head computerized embroidery
machine with sequence attached for a sum of Rs. 9,50,000/.
The petitioner has paid Rs. 1,00,000/- in cash against
receipt as advance to respondent No.2 and petitioner also
issued eight post dated cheques of Rs. 1,00,000/- each to
respondent No.2. Two cheques bearing No. 653958 and
653959 of Rs. 1,00,000/- each were dishonoured.
Respondent No.2/ complainant served a legal notice upon
the petitioner and thereafter filed a criminal complaint
bearing No. 1879/1 under section 138 of the N.I. Act against
the petitioner. But the said case was withdrawn by
respondent No.2/ complainant on 23.9.2007. The petitioner
claimed that he has made total payment of Rs. 9,80,000/-
against the price of machine which is Rs. 9,50,000/-. The
petitioner claimed to have paid Rs. 30,000/- more than the
price of the machine and has prayed that the proceedings
are without any merit and the same be quashed.
3. On the other hand learned counsel for respondent
No.2 submitted that the petitioner has purchased the
aforesaid machine from respondent No.2 for a consideration
of Rs. 9,50,000/-. The petitioner issued eight post dated
cheques for Rs. 1,00,000/- . The balance amount of Rs.
1,50,000/- was to be paid at the time of delivery of the
machine. He further submits that only two cheques bearing
No. 653957 and 653960 for Rs. 1,00,000/- were honoured.
On presentation of cheques bearing No. 653958 and
653959 were returned unpaid to respondent No.2 by the
Banker of the petitioner. Thereafter, legal notices were sent
on the petitioner and when no payment was received a
complaint was filed by the complainant bearing No. 1879/1
which was in respect of cheque No. 653958 was
compounded and withdrawn on 23.9.2007. It was settled
between both the parties that petitioner will pay
outstanding balance amount and therefore he issued three
fresh post dated cheques for an amount of Rs. 2,40,000/-
each bearing Nos. 641684 dated 28.10.2007, 641685 dated
28.11.2007 and 641686 dated 28.12.2007. However,
respondent No.2 returned four cheques bearing Nos.
653961, 653962, 653963 and 653964 for Rs. 1,00,000/- to
the petitioner. The other complaint filed in respect of
cheque No. 653959 is still pending in the Court of learned
Metropolitan Magistrate, Patiala House, New Delhi. Cheque
bearing No. 641684 issued by the petitioner to respondent
No.2 for Rs. 2,40,000/- was again dishonoured by the
Bankers of the petitioner. In respect of cheque bearing No.
641685 the petitioner asked respondent No.2 not to present
the same and in lieu of the above said two cheques for Rs.
2,40,000/- each again gave 4 post dated cheques for Rs.
1,20,000/- each which on presentation were honoured by
the Bankers of the petitioner. Only one last cheque bearing
No. 641686 for Rs. 2,40,000/- when presented was again
dishonoured. Out of this amount of Rs. 9,50,000/-, the
petitioner has paid Rs. 6,80,000/- and an outstanding
balance amount of Rs. 2,70,000/- is still not paid by the
petitioner to respondent No.2. Respondent No.2 again
served a legal notice on the petitioner for making payment
of balance amount and stated that in case payment is not
made within stipulated time the criminal proceedings will be
initiated against the petitioner. Respondent No.2 filed a
criminal complaint bearing No. 638/1 under section 138 of
the N.I. Act against the petitioner. Respondent No.2 also
denied having received Rs.1,00,000/- in cash from the
petitioner and also denied receipt thereof.
4. Learned counsel for the petitioner submitted that the
machine supplied by respondent No.2 was defective and
respondent No.2 had responsibility of removing the defects
in the warranty period but the respondent has failed to
remove the defects in the said machine. This fact has also
been denied by learned counsel for the respondent that
there was any defect in the machine.
5. I have heard learned counsel for the parties and perused
the record.
6. The petitioner admits in the petition that he has placed
order for supply of a unit of six head computerized
embroidery machine on respondent No.2. He has also given
eight post dated cheques for the sum of Rs. 1,00,000/-
each. He has also admitted that the machine was duly
supplied by respondent No.2 to the petitioner. He has also
admitted that three cheques were dishonoured. He also
admitted that last cheque bearing No. 641684 for Rs.
2,40,000/- was dishonoured. However, the petitioner has
raised a plea that he has made more payment of Rs.
30,000/- than the price of the machine and that the
complaint is liable to be quashed. Since the supply of the
machine by respondent No.2 to the petitioner has been
admitted and the petitioner admitted receipt of the notice
regarding dishonour of cheque for Rs. 2,40,000/- and no
payment has been made after legal notice served by the
respondent No. 2 to the petitioner, in my opinion there is
sufficient cause of action available to respondent No.2 for
filing case under section 138 of the N.I. Act against the
petitioner under the law. The petitioner has also admitted
that the cheque was issued in discharge of his liability to
make payment towards price of the machine supplied. All
the issues raised by the petitioner are disputed questions of
facts which can only be decided by evidence by the trial
Court. These issues can't be decided by this Court in this
petition. No case for quashing the petition and the
summoning order is made out. The present petition is
totally frivolous and the same is hereby dismissed with
costs of Rs. 10,000/- to be paid to respondent No.2 before
learned trial Court.
LCR be sent back immediately.
August 02 , 2010 S.L. BHAYANA. J
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