Mallick, J. - (1.) The petitioner who is accused No. 2 in the Case No. C/374 of 1989 under Section 138 of the Negotiable Instruments Act, 1881, as amended by the Banking, Public Financial Institutions and Negotiable Instruments Laws (Amendment) Act, 1988, now pending before the learned Metropolitan Magistrate, 5th Court, Calcutta, has moved this court under Section 401, read with Section 482, of the Criminal Procedure Code, 1973, for quashing the said proceeding against him on the following allegations. On November 15, 1989, the opposite party being the Director (Commercial) of M/s. T. S. Foundry Equipment Pvt. Ltd. having its registered office at 2, Ganesh Chandra Avenue, filed a petition of complaint before the learned Additional Chief Metropolitan Magistrate, Calcutta, charging the petitioner with an offence punishable under Section 138, as amended by the Banking. Public Financial Institutions and Negotiable Instruments Laws (Amendment) Act, 1988. In the aforesaid complaint, it was, inter alia, alleged- "That accused No. 1, Dilip Jaiswal, who is the director of M/s. Hisco Steel Pvt. Ltd., accused No. 1, on behalf of his company placed an order on February 5, 1989, to the complainant's company for supplying various sizes of moulding boxes. Pursuant to the aforesaid order, the complainant's company, on two different dates, supplied a total of 45 numbers of moulding boxes to accused No. 1, under proper receipts on September 12 and 13, 1989. Thereafter, the complainant's company submitted two bills, one for Rs. 46,582.50 and another for Rs. 1,06,665.60 when, on October 12, 1989, accused No. 2, on behalf of his company, accused No. 1, issued a cheque in favour of the complainant's company towards the payment for the cost of the said articles. On the same day, accused No. 2 as the managing director of Hotel Hindusthan International, by a letter dated October 12, 1989, guaranteed the payment of the dues of the complainant's company amounting to Rs. 1,52,648.10 and issued a post-dated cheque for Rs. 1,52,648.10, on consideration that the said cheque be presented for encashment in the event the earlier cheque 'dated October 12, 1989, was dishonoured for any reason. The complainant presented the cheque dated October 12, 1989, to the banker for encashment. On October 17, 1989, the bank returned the said cheque unpaid with an endorsement "exceeds arrangement." Thereafter the complainant presented the cheque dated October 23, 1989, to the banker for encashment and the said cheque was also returned unpaid with an endorsement "payment stopped by drawer". It was further alleged that in the meantime, the accused company, by letter No. Hisco/Works/MK/89 dated October 14, 1989, written by the factory manager of accused No. 1 (HISCO), informed the complainant-company that those 45 numbers of moulding boxes were rejected and advised the complainant to collect the same within 48 hours from the date of receipt of the letter. The said letter was received by the complainant on October 19, 1989. The complainant's company by letter No. GEN/H-2/89-90/471, dated October 25, 1989, denied and disputed all the allegations made in the aforesaid letter. The complainant, by tetter No. TSF/HISCO/89 90, dated November 25, 1989, sent to the factory at 68, Jessore Road, Calcutta-55, as well as to the head office of the accused at 8, Rajendra Deb Road, Calcutta 700 007, under registered post with acknowledgment due in writing for the payment of the aforesaid dues of Rs. 1,52,648.10 being the unpaid price of 45 numbers of moulding boxes sold to the accused, within 15 days from the date of receipt of the said notice and were duly received by the accused. It is further alleged that both the accused despite the receipt of the aforesaid notice of demand dated October 25, 1989, failed and neglected to pay the said sum of Rs. 1.52,648.10 to the complainant's company within the stipulated time."
(2.) The learned Additional Chief Metropolitan Magistrate, on November 25, 1989, took cognizance of the offence and made over the case to the Metropolitan Magistrate, 5th Court, Calcutta, for enquiry and trial under Section 192, Criminal Procedure Code. On that date, the learned Metropolitan Magistrate, 5th Court, Calcutta, examined the complainant on oath and issued summons against the petitioner and Hisco Steel Pvt. Ltd., directing them to appear in court under Section 138 of the Negotiable Instruments Act, 1881. as amended by the Banking, Public Financial Institutions and Negotiable Instruments Laws (Amendment) Act, 1988, and face the trial. The petitioner contends that the impugned prosecution against the petitioner as well as against Hisco Steel Pvt. Ltd. is wholly misconceived, that as the goods supplied by the company to the opposite party being defective and having been rejected, there could be no liability on the petitioner company to pay for the aforesaid sub-standard articles and consequently the dishonour of the cheque to pay for the said goods does not amount to an offence under Section 138 of the Negotiable Instruments Act. It is also submitted that, in any event, the prosecution of the petitioner under Section 138 of the Negotiable Instruments Act is wholly illegal inasmuch as, prior to the lodging of the complaint, no notice of demand was served upon him. It is, therefore, prayed that the Case No. C/374/89 be quashed.
(3.) The revision petition is opposed by the opposite party. It is submitted that the goods that were supplied were not of sub-standard quality, that no such complaint within thirty days of the receipt of the goods was ever made, that the impugned cheque was to be effective only after one month from the date of supply of the goods and that, admittedly, the cheque issued by Hisco Steel Pvt. Ltd. of which petitioner No. 2 being the director who was in charge of the company and issued the cheque on behalf of the company, was dishonoured by the bank on October 16, 1989, on the ground "exceeds arrangement" and this fact brings the case of the opposite party within the purview of Section 138 of the Negotiable Instruments Act, that notice as contemplated under Section 138 of the Act was duly served upon Hisco Steel Pvt. Ltd., that the petitioner being the director in charge being prosecuted along with the above company under Section 141 of the Negotiable Instruments Act and, consequently, there is no infirmity in the prosecution at the present stage for this court to interfere and to quash the proceeding.;