- (1.) Both the matters since arising out of the same case, were heard together and are being disposed of by this common order. Cr.M.P.No.1649 of 2011 has been filed on behalf of M/s. Maa Bhagwati Coke Pvt. Ltd. for quashing of the order dated 3.1.2009 passed by the Judicial Magistrate, Dhanbad in C.P. case no.1876 of 2008 whereby and whereunder cognizance of the offence under Section 138 of the Negotiable Instrument Act was taken against the petitioners whereas Cr. M. P. No.883 of 2009 has been filed on behalf of Sanjeev Kumar Agrawal, the Managing Director of said company for quashing of the order dated 2.4.2009 passed by the learned Sessions Judge, Dhanbad in Cr.Rev.No.85 of 2009 whereby learned Sessions Judge refused to set aside order taking cognizance.
(2.) The facts giving rise to the complaint petition are that under an agreement entered into in between the complainant company M/s. Balaji Coke Pvt. Ltd. and the State Trading Corporation of India Limited, New Delhi, the complainant company was to purchase Coking Coal of foreign origin. The complainant company having entered into such agreement also entered into High-Seas Sale agreement with the accused company whereas accused company agreed to purchase coal of foreign origin for a valuable consideration which is to be paid on submission of invoices and the delivery order was to be issued after receipt of the payment which payment is to be made to the State Trading Corporation of India Limited to be credited in the account of the complainant company. Subsequently, on 2.6.2007 M/s. Maa Bhagwati Coke Pvt. Ltd. (accused no.1) wrote a letter to the State Trading Corporation of India Limited to grant necessary permission to the complainant company for release of 1000 M.T of coal so that it on being supplied to accused company be converted into coke and be sold and the sale proceeds be deposited with the State Trading Corporation of India Limited for which M/s. Maa Bhagwati Coke Pvt. Ltd.(accused no.1) would be depositing 41 post dated cheques and as soon as the payment is made, one post dated cheque would be returned by the State Trading Corporation of India Limited and in case, the accused company fails to make payment, the said post dated cheques may be deposited for encashment.
(3.) Further case of the complainant is that towards discharge of part of the liability of the complainant company, the accused company issued three cheques of Rs.20,00,000/- each in favour of the State Trading Corporation of India Limited which on its deposit got dishonoured on account of insufficient fund, information of which was given under memo dated 12.5.2008. Thereupon, the complainant in this regard spoke to accused no.2, Sanjeev Kumar Agrawalla (petitioner in Cr.M.P.No.883 of 2009) who made request to the complainant company to present the cheque again on 18.7.2008 so that it be honoured. Accordingly, it were again presented before H.D.F.C, Kolkata on 18.7.2008. The said cheques were sent before the accused banker, H.D.F.C, Dhanbad for clearance but again it got dishonoured, information of which was given to the State Trading Corporation of India Limited on 27.7.2008. Thereupon on 20.8.2008 legal notice was sent to accused company calling upon it to make payment but the accused persons vide its legal notice dated 29.8.2008 not only refused to make payment rather made counter claim and thereby they failed to make payment of the cheque amount.;