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2006(2) Bankmann 388(1)
DELHI HIGH COURT
J.P. Singh, J.
Constellation Enterprises
Pvt. Ltd. & Anr. — Petitioners
versus
P.E.C. Limited — Respondent
Crl. M.C. No. 276-277/2006 and Crl. M.A. No. 427 of 2006
Decided on 18-1-2006
Held: The facts and circumstances show that the parties had a successful earlier contract. There is no denying the fact that in the first contract a post dated cheque was given as security. Since the terms and conditions of the second contract are the same, then it is obvious that for the second contract also a post dated cheque had to be given as security. Since the first contract was concluded and the parties were having good relations and there is hardly any gap between the two contracts, it is plausible and believable on the face of it that the accused could tell the complainant to treat the earlier unused cheque as security for the second contract. The Director as also the authorized signatory had put their signatures under the cutting regarding the date of issue of cheque and the plea of the complainant that the date was filled with consent cannot be thrown out at the threshold. Therefore, at this stage the accused cannot be heard to say that the first cheque could not be used for the second transaction. (Paras 13)
As regards the second point even if a post dated cheque is given as security and the payment is not made as promised, then the said post dated cheque itself becomes payable because that is the agreement and understanding between the parties otherwise the security would have no meaning. (Para14)
Result: Petition dismissed.
J.P. Singh, J.—This is a petition under Section 482 of the Code of Criminal Procedure for quashing the summoning Order dated 14.2.2003 passed by the Metropolitan Magistrate, New Delhi in Criminal Complaint Case No. 478/1/2002 under Section 138 read with Section 142 of the Negotiable Instruments Act.
2. I have heared Mr. V. K. Shali learned counsel for the petitioners on admission and have gone through the impugned Order as well as copies of the documents placed on the file.
3. As per complaint the brief facts are that the respondent-complainant company is a Government of India enterprise. Accused No. 1 through its duly authorized Directors approached the complainant-company in April 2000 with a proposal for import of 1000 CBM Indonesian Meranti from one M/s Pt. Bumitubhuh Perkasa, Indonesia and requested the complainant to import the goods on their behalf and promised to lift the goods as per agreement and to make complete payment thereof. The complainant was to give post dated cheque for 91.5% of the value as security along with company’s undertaking for honouring the cheque. Accordingly, cheque No. 940188 drawn on Bank of Hyderabad, Noida dated 20.7.2000 for a sum of Rs. 53,15,250 was given in favour of the complainant. The complainant opened a letter of credit on behalf of the accused and imported the goods from the supplier. The said contract was completed in October, 2000.
4. In November, 2000 the accused again approached the complainant for a second contract to import 700 CBM MLII LOGS from one M/s Seamark Exporters Sdn. Bhd. Sarawak, Malaysia and a fresh Associationship Agreement was entered into on 29.11.2000, on the same terms and conditions.
5. In para 6 of the complainant, it is averred that accordingly as per clause 1 (i) of the agreement the accused were required to give post dated cheque to cover 91.5% of CNFFO value. Since the parties were dealing with each other for quite some time and the cheque bearing No. 940188 dated 20.7.2000 for a sum of
Rs. 53,15,250 given under the first Associationship Agreement was lying with the complainant unused, the accused requested that the same may be treated as security cheque under the second agreement. The accused at that stage expressly consented and informed the Complainant that the said cheque be treated as revalidated and further stated that since the alteration made in the date already had their (accused persons} signatures, the complainant could fill in the date and present the same for encashment as and when the need arises.
6. In para 7 of the complaint, it is revealed that in the circumstances stated above the complainant was holding the aforementioned cheque with no date. Under the second Associationship Agreement the accused was to lift the Cargo imported against 100% payment to the complainant and the complainant had paid the entire amount to the supplier but the accused failed to lift the Cargo and violated the agreement despite repeated requests, which caused heavy loss to the complainant because the complainant had to pay dumping charges as well to the shipping agent.
7. In para 10 of the complaint, it is stated that on 31.12.2001 the accused wrote a letter to the complainant and acknowledged and admitted its liability towards the complainant and sought certain concession and time to make the payment but the complainant rejected the said request and called upon the accused to clear the outstanding amount.
8. In para 12 of the complaint, it is alleged that subsequently the accused requested and instructed the complainant to present the cheque bearing
No. 940188 lying with them under the aforesaid Associationship Agreement dated 29-11-2000. The complainant accordingly, on the instruction of the accused and with the consent dated the cheque as 22.2.2002 and presented the same for encashment which was dishonoured.
9. In para 3 of the complaint, it is specifically averred that accused No. 1 is a company while accused Nos. 2 to 4 are the Directors of accuse
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