Decided on March 18,2016

M/S. Moser Baer Photo Voltaic Ltd. Appellant
M/S. Photon Energy Systems Ltd. And Ors. Respondents


- (1.) Leave granted.
(2.) In course of its business of supplying solar cells and laminates, the appellant-company made supplies to the respondent no.1. Respondent nos.2 to 6 are the Chief Executive Officer; General Manager (Finance); Ex-Chief Executive Officer; Chairman; and the Managing Director respectively of respondent no.1. According to appellant's case, against larger outstanding dues, the respondent no.1 issued a cheque dated 31st May 2008 for Rs.3,21,53,903/- only. On a request that there was shortage of some funds the cheque was not to be presented immediately. There were some disputes between both the parties which were settled through a mutual meeting and as per minutes of meeting held on 22nd and 23rd September 2008, the net payable amount by respondent no.1 was reduced and settled at Rs.2,87,09,640/-.
(3.) The cheque was presented with the bankers M/s. HDFC but it was returned on 28.11.2008 with the remark "funds insufficient". On receipt of Memo of Dishonour at its Delhi office, appellant sent a legal notice dated 18.12.2008 demanding only the settled outstanding amount of Rs.2,87,09,640/- and not the cheque amount which was Rs.3,21,53,903/-. On 19.12.2008, respondent no.1 paid an amount of Rs.20 lacs towards its debt liability and in reply to the notice it denied the balance liability. It also adopted a further defence that the cheque was given for a larger amount by way of security and was not for any payable debt. The criminal complaint filed by the appellant under Sections 138/141/142 of the Negotiable Instruments Act, 1881 in the Court of XI Additional Chief Metropolitan Magistrate, City Criminal Courts at Secunderabad registered as C.C. No.829 of 2009 was entertained and non-bailable warrant was ultimately issued against the accused persons on 04.03.2009. The respondents could not succeed against the order issuing non-bailable warrant but their subsequent petition under Section 482 of the Code of Criminal Procedure was entertained and finally allowed by the impugned order under appeal dated 12.10.2011. As a result, the criminal complaint of the appellant has been dismissed mainly on the ground that the cheque amount was different from the legally enforceable debt as per notice given by the appellant to the accused persons.;

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