The main legal point established in the judgment is the statutory right of a party to cross-examine witnesses under Section 138 of the NI Act and the discretionary authority of the court to summon material witnesses under Section 311 Cr.P.C.

I. S. MEHTA, J.

1. By way of the instant petition under Section 482 read with Section 483 Cr.P.C. the petitioners are seeking for setting aside and quashing of the impugned order dated 16.05.2013 passed by the learned Metropolitan Magistrate (Central-02), Tis Hazari Courts, Delhi in CC. No. 648/RN/2010 wherein the application filed by the petitioners under Section 311 Cr.P.C. was dismissed.

2. The brief facts as stated in the complaint filed by the respondent No.2-M/s Indian Potash Ltd. under Section 138 of the Negotiable Instruments Act, 1881 (NI Act) are that the respondent no. 2/complainant is a company duly incorporated under the Indian Companies Act, 1956 having its registered office at Ambal Building, 3rd Floor 727, Anna Salai, Chennai- 600006 and corporate office at 3rd Floor, Pragati Tower, 26 Rajinder Place, New Delhi- 110008. The respondent No.2/complainant, through its Senior Manager (PO), Sh. Ashok Pande, filed a complaint before the Court of Learned ACMM, Tis Hazari Courts, New Delhi under Sections 138 of the Negotiable Instruments Act, 1881 against the accused persons, i.e. (1) M/s Four Seasons Energy Ventures Pvt. Ltd., (petitioner no. 2 herein), (2) Venu Madhava Kaparthy (Director) (petitioner no. 1 herein) and (3) Mahadevan Ramaswamy Iyer Makiemadom (Director).

3. It is alleged in the said complaint that the petitioner No.1 and Mahadevan Ramaswamy Iyer Makiemadom (Director)/accused No.3 have been all time in-charge of and in day to day control of the business of the petitioner No.2-Company, moreover representing themselves to be the lawful directors and in-charge of the petitioner No.2-Company, have directly made representations to the respondent No.2 at its corporate office. It is further alleged that the petitioner No.1 and the said accused No.3 on behalf of the petitioner No.2-Company visited the office of the respondent No.2 in January 2010 at New Delhi at its corporate office and made representations that they were running a company which was carrying on the business of facilitating deals, contracts, supplies to International parties by India based companies in the field of fine quality iron ores. In this regard they had already resourced a foreign buyer based in Switzerland under the name & style of M/s. Glencore International A.G. and that in case respondent No.2-Company was interested then they could sign a contract with M/s. Glencore International A.G. in terms of which contract iron ore of specific quality and purity would be supplied by the respondent No.2/complainant to M/s. Glencore International A.G. as per the terms of the contract. It was also further stated that the iron ore would be procured by all the accused through their independent sources at rates agreed by and iron ore of specific quality would be made ready in storage at Krishnapatnam port at a specified period of time so that the same could be shipped to M/s. Glencore International A.G.

4. Further it is alleged that during the negotiations the petitioner No.1 and the accused No.3 stated to the respondent No.2/complainant that in order to make the deal of supply to M/s. Glencore International A.G. workable, respondent No.2/complainant was required to pay a mobilization advance of Rs. 2.50 crores to the aforesaid accused and also would have to make payments at the behest and at the instance of the said accused for procurement of iron ore at the end of the accused from time to time. In order to secure the respondent No.2/complainant, the accused stated that for and on behalf of petitioner No.2 a Bank Guarantee to the tune of Rs. 1.25 crores would be executed in favour of respondent No.2/complainant in order to secure him as regards their mobilization advance. It is further alleged that the petitioner No.1 and the accused No.3 for and on behalf of petitioner No.2-Company quoted prices of supply of the iron ore of specific purity as required by M/s. Glencore International A.G. at their end which on the face of it were extremely lucra