Lisa Apparels (Pvt.) Ltd. vs M.S. Clothings Company

Arali Nagaraj, J.—Though this matter is listed today for admission, having regard to the nature of the relief sought for, it is taken for final disposal, by consent of Sri. B.C. Thiruvengadm, the learned Counsel for the petitioners - accused.

In this petition filed u/s 482 Cr.PC, the petitioners, who are accused in CC No. 21851/2009 (PCR No. 16650/2009) on the file of the learned XV Additional Chief Metropolitan Magistrate. Bangalore City (hereinafter referred to as ''Trial Court'' for short), have sought for quashing of entire proceedings in the said case.

Stated in brief the case of the respondent - complainant as averred in his complaint filed u/s 200 Cr.PC before the Trial Court is as under:

(a) The complainant - company has been dealing in garment accessories. The 1st accused has been a Company represented by the 2nd accused, who is its Managing Director. During the year 2008-2009, the 2nd accused, for and on behalf of the 1st accused, purchased the garment accessories from the complainant - Company on credit basis and, in respect of the credit transaction, which the accused had with the complainant in the matter of purchase of garment accessories, the accused became due to the complainant in a sum of Rs. 8,46,047.00 towards principal, which carries interest, at the rate of 24% p.a.

(b) In respect of several repeated demands and personal approaches, the accused failed and neglected to remit the aforesaid outstanding amount and even cheque for Rs. 5,02,515.00 bearing No. 986729 dated 23.1.2009 issued by the accused, drawn on ABN Amro Bank, Bangalore, came to be dishonoured when it was presented to the Bank on 18.7.2009 with an endorsement as "payment stopped by drawer". Consequent upon the dishonour of the said cheque, the complainant got issued a legal notice dated 24.7.2009 to the accused. The said notice was received by the accused on 28.7.2009. The accused sent an untenable reply dated 10.8.2009 denying their liability to pay to the complainant the said amount. Therefore, the complainant Piled the said complaint before the Trial Court.

Learned Counsel for the petitioners accused strongly contends that the Trial Court committed a serious error in not considering the contents of the reply notice given by the petitioners - accused in response to the notice issued to them by the complainant and if the Trial Court had considered the contents of the said reply, it would not have issued process against the petitioners - accused and therefore the entire proceedings in the said case deserve to be quashed.

On careful reading of the above averments in the complaint, it could not be said that the said averments do not constitute the offence u/s 138 of Negotiable Instruments Act, Besides this, it is clearly stated in the reply sent by the accused to the complainant in response to the notice issued to them by the complainant, copy of which is produced by the petitioners at Annexure-H, that the cheque in question was issued by them only as a security for the materials supplied by the complainant and not towards discharge of any debt. Thus it is clear that issuing of the cheque in question in favour of the complainant, is clearly admitted by the petitioners - accused. The contention that, the said cheque was not issued by the accused in favour of tire complainant towards discharge of legally enforceable debt, but it was issued as a security towards the materials supplied to them by the accused is to be established by the accused during trial of the case.

Placing reliance on the documents al Annexures-J and L, the letters said to have been written to the accused by the complainant - Company, the learned Counsel for the petitioners - accused strongly contends that these letters clearly establish that the complainant, by suppressing the true facts, approached the Court by filing the said complaint. Suffice it to say that the contents of these two letters and also the contents of reply notice may constitute the defence of the accused, which cannot be considered at the stage of issuing of process against the accused. It is well settled that while issuing the process, what is lo be seen by the Court is, ''whether the averments in the complaint, the sworn statement and the documents produced by the complainant constitute any cognizable offence?'' If answer is in the affirmative, process has to be issued.

It is also settled that proceedings in a criminal case cannot be quashed in exercise of inherent powers u/s 482 Cr.PC, if the complaint, the documents produced by the complainant and his sworn statement, prima facie establish the commission of any cognizable offence by the accused. In the instant case, it is clear that the complainant has established prima facie case against accused for the offence u/s 138 of N.I. Act.

For the reasons aforesaid. I am of the considered opinion that the Trial Court did not commit any error in issuing process against the petitioners - accused for the offence u/s 138 of N.I. Act. Hence the present petition is dismissed as being devoid of merits.