SHREE SARLA WEAVERS CO OPERATIVE SPINNING MILLS LTD Vs. PUNJAB STATE CO-OPERATIVE SUPPLY AND MARKETING FEDERATION LTD

JUDGEMENT

(1.) -CRL. MISC. No. 29135- M/ 1997 seeks the quashing of complaint Annexure P-8 titled Punjab Cooperative Supply and marketing Federation (MARKFED) Chandigarh through OSD Cotton markefed, Bhatinda v. M/s. Orissa Cooperative Spinning Mills Federation and others filed under Section 138 of the Negotiable Instruments act (in short the Act) and the order Annexure P-9 passed by Judicial magistrate First Class, Bhatinda dated 22. 5,1995 sumoning the accused for their trial thereunder.

(2.) AS prayer for quashing rests on facts which are common to all complaints facts are taken from the complaint (ibid ).

(3.) PUNJAB State Cooperative Supply and Marketing Federation ltd. (hereinafter to be referred as Markfed) through OSD (Cotton)Markfed Bhatinda instituted complaint under Section 138. of the negotiable Instruments Act, 1881 (in short the Act) as amended upto date against M/s. Orissa State Cooperative Spinning Mills Federation limited and others on the allegations that complainant is a federation registered under the Punjab Cooperative Societies Act, 1961. It deals in the purchase of cotton, Narma, wheat, etc. from the market. Accused m/s. Orissa State Spinning Mills Federation Ltd. is a cooperative federation, accused No. 2 is one of its subsidiaries in the State of Orissa. Entire business of respondent No. 2 is conducted through accused No. 1 and further by its Secreatary and General Manager. Accused Nos. 3 and 4 are authorised signatories of accused No. 2. Accused No. 2-maintains an account with State Bank of India. Industrial Estate, bhuvaneshwar. Account is being operated upon by accused Nos. 3 and 4 jointly, On 4. 12. 91, accused No. 1 through telephone desired to purchase cotton bales of different qualities and the deal was struck on telephone. A free period of 35 days from the date of bargain was given and, thereafter charges of 2. 5 % per month were agreed to be payable by the accused and other terms and conditions were settled as per the previous year. The complainant confirmed the said vide letter dated 26/ 31. 12. 91. Accused No. 2, on the basis of aforesaid bargain dated 4. 12. 91 vide their separate letter dated 25. 12. 91 desired the purchase of 500 cotton bales of F-414 -S/g "a" including 200 cotton bales of the said quality of lot Nos. 109 and 110, 100 cotton bales each bearing Sr. no. 4751 to 4850 and 4951 to 5050 respectively from Muktsar Station and also handed over post-dated Cheque Nos. 172944 dated 23. 1. 93, 172945 dated 25. 1. 93 and 172946 dated 27. 1. 93 for Rs. 3 lacs each tot he complainant at Bhatinda. The complainant issued sale letter for 200 cotton bales bearing lot Nos. 109 and 110 of F-414 - S/g"a" having serial Nos. 4751 to 4850 and 4851 to 5050 from Muktsar Station at Rs. 12,000/- per candy and also issued Billno. 68 dated 2. 12. 92 for an amount of Rs. 14,59,527. 90. Delivery was to be taken by the accused from Muktsar and payment was to be made at Bhatinda and the sale was also transacted at Bhatinda as per terms and conditions of the bargain. Accused took the delivery of 200 cotton bales from Muktsar against the above 3 post-dated Cheques No. 172944 dated 23. 1. 93, No. 172945 dated 25. 1. 93 and No. 172946 dated 27. 1. 93 for Rs. 3 lacs each drawn on State Bank of India, Industrial Estate Bhuvaneshwar which was handed over to the complainant at Bhatinda. The complainant maintained its account with the State Bank of India, Bhatinda and the aforesaid cheques for Rs. 3 lacs each were presented for encashment and realisation to the State Bank of India, Bhatinda Branch. These were payees account cheques. There cheques were sent to the drawee bank through clearing house. State Bank of India, Bhuvaneshwar branch vide their memo dated 27. 4. 93 dishonoured the said cheques with the endorsement "effects vet not learned, nlease oresent again". A aforesaid cheques were bounced/returned unpaid because amount standing to the credit of that account was not sufficient enough to honour the cheques. Complainant received intimation regarding the return of cheques as unpaid vide memo dated 16. 4. 93 of the banker of complainant along with the endorsement slip and dishonoured cheques. Complainant got issued registered AD notices dated 3. 5. 93 under Section 138-B of the Negotiable Instrument Act, 1881 through its counsel and made demand of Rs. 3 lacs each with regard to all three cheques along with interest thereon and called upon the accused to make payment within 15 days of the receipt of the notices. Those notices were duly received by the accused. Accused failed to make payment of the amount of cheques amounting to Rs. 9 lacs i. e. , Rs. 3 lacs each. As per complainant accused 1 to 4 issued cheques in favour of the complainant in lieu of the discharge of their debt/liability and those cheques were bounced/returned unpaid by the Bank with the endorsement "effects yet not cleared, please present again" and accused thus failed to make payment of the cheques within 15 days from the date of receipt of notices as said offence under Section 138 of the Negotiable instruments Act was committed by them Prayer for quashing of this complaint and the order summoning the accused is based on the following facts set up by the accused.