Exports India and anr. Vs. State and anr. - Court Judgment

Excerpt:
- - 1. 6. the aforesaid averments are clearly false inasmuch as it was a blank cheque given at the time of signing of the agency agreement. it may be noted that the complainant before filing the complaint had given the legal notice dated 22.5.2000 and reply to the said notice was given pointing out the aforesaid facts but in the complaint, the complainant has not at all mentioned about the said reply nor filed the same as a document along with the complaint and has, thereforee, suppressed these facts as well.a.k. sikri, j.1. m/s. surbhi wears pvt. ltd. (respondent no. 2 herein) has filed complaint under sections 138/141/142 of the negotiable instruments act against the petitioner herein. in the said complaint summoning orders have been passed by the learned mm and challenging these summoning orders, present petition is filed by the petitioners. the complaint is founded on the dishonour of cheque bearing no. 154832 drawn on dena bank, bhowanipore, calcutta.2. in this petition filed by the petitioners, summoning order is challenged. it is stated that there was an agency agreement entered into between m/s. bumpi udyog and m/s. exports india whereby m/s. exports india (petitioner no. i herein) was appointed as agent of m/s. bumpi udyog for the sale of products of m/s. bumpi udyog in certain territories specified in the said agreement. as a security of the said agency agreement the petitioner no. 1 had given two black cheques, including the cheque in question as stipulated in para 9 of the said agreement which reads as under:9. that the part of the 2nd part will deposit '2' black cheque nos. 154832 and 154833 of the dena bank, bhowanipore, calcutta, which is given to the 1st party as a security of the agency agreement.3. submission is that one of these cheques is utilised by the complainant, namely, cheque no. 154832 by filling the date as 24.4.2000, amount of rs. 4,78,807/ and surbhi wears pvt. ltd. as drawee. on the basis of these facts the contention of the learned counsel for the petitioners is that the complaint filed by the complainant is not maintainable inasmuch as:(i) cheque was given to m/s. bumpi udyog whereas the complaint is filed by m/s. surbhi wears pvt. ltd.; and(ii) the cheque, when it was given, obviously there was no dues payable by the petitioner no. 1 even to m/s. bumpi udyog and since there was no debt or liability when the cheque was handed over to m/s. bumpi udyog, complaint under section 138 could not have been filed on the basis of the said blank and undated cheque.4. on 26.5.2003 notice was issued to the respondent no. 2/complainant and it was directed that there shall be a stay of proceedings before the trial court. notice was duly served upon the respondent no. 2 and respondent no. 2 appeared through counsel. however, for last 4-5 dates nobody has been appearing on behalf of respondent no. 2. in these circumstances, i have heard the learned counsel for the petitioner. trial court record was also summoned which is perused.5. after hearing the learned counsel for the petitioner i am of the opinion that this petition warrants to be allowed. it is obvious from the agreement in question that the same was entered into on 11.2.1999 between m/s. bumpi udyog and the petitioner no. 1 and this agreement specifically records giving of black cheques bearing nos. 154832 and 154833 to m/s. bumpi uhyog. it is clear that the blank cheque was given as a security of the agency agreement and it is nowhere staled that there is any violation of the terms and conditions of the said agreement. the case made out in the complaint is that certain dues were payable by the petitioner no. 1 to the complainant and in discharge of the said liability the cheque in question was issued as is clear from the following averments made in para 5 of the complaint, which reads as under:5. that consequently to discharge their liability qua complainant, accused no. 2 handed over a cheque bearing no. 154832 dated 24.4.2000 for rs. 4,78,807/- drawn on dena bank, bhawanipore, calcutta-700025 in favor of m/s. bumpy udyog. the cheque has been signed by accused no. 3 as partner of accused no. 1.6. the aforesaid averments are clearly false inasmuch as it was a blank cheque given at the time of signing of the agency agreement. it may be noted that the complainant before filing the complaint had given the legal notice dated 22.5.2000 and reply to the said notice was given pointing out the aforesaid facts but in the complaint, the complainant has not at all mentioned about the said reply nor filed the same as a document along with the complaint and has, thereforee, suppressed these facts as well.7. in balaji sea foods exports (india) ltd. v. mac industries ltd. (madras) ii (1999) ccr 424 : 1999 (1) rcr 683, the madras high court in identical circumstances dismissed the complaint as not maintainable which was based on undated cheque given at the time of execution of the agreement holding that there was no debt or liability when the cheque was hand over to the drawee and. thereforee, the complaint could not be maintainable. this petition is accordingly succeeds. summoning order is quashed and the complaint filed by the respondent no. 2 is dismissed.8. trial court record be sent back.