THE HON’BLE SRI JUSTICE B.SESHASAYANA REDDY Criminal Petition No.2476 of 2007 (Dated : 22-07-2010) Between: M/s.A.V.J.Infotech (P) Ltd. Kokata-700 012 and another …Petitioners A n d M/s.Excel Technologies Rep. By its Managing Partner And State rep. By the Public Prosecutor ….Respondents THE HON’BLE SRI JUSTICE B.SESHASAYANA REDDY Criminal Petition No.2476 of 2007 ORDER: This Criminal Petition has been taken out under Section 482 Cr.P.C. by M/s.A.V.J.Infotech (P) Ltd. represented by its Managing Director Mr.Allok Paliwal with a prayer to quash the proceedings in C.C.No.144 of 2007 on the file of Chief Metropolitan Magistrate, Visakhapatnam. 2. The 1st respondent herein filed a complaint before the Chief Judicial Magistrate, Visakhapatnam under Section 190(1) and 200 Cr.P.C for the offences punishable under Sections 138 and 142 of Negotiable Instruments Act alleging inter alia that the complainant is a partnership firm incorporated in the year 2003 and is carrying on the business of Automation products sales and service. The accused appointed the complainant as a franchise to the Visakhapatnam territory and entered into a Memorandum of Understanding on 10.3.2004. The complainant paid Rs.4,50,000/- by way of cheques from 4.3.2004 to 3.6.2004 for being appointed as franchise. After receiving the said amount, the accused did not fulfill the terms and conditions of the M.O.U. Thereafter, the accused failed to return the money. The complainant filed a complaint under Section 190 Cr.P.C on the file of Chief Metropolitan Magistrate, Visakhapatnam and the complaint came to be forwarded to the police and the concerned police registered a case in Crime No.159 of 2006. After the complaint is registered, the complainant visited Kolkatta along with III Town Police personals as well as his legal counsel. A deed of settlement came to be executed on 11.7.2006. The accused paid Rs.1,50,000/-to the complainant and agreed to pay the balance amount. The accused paid Rs.3,00,000/- by post dated cheques dated 12.8.2006, 12.9.2006 and12.10.2006 for Rs.75,000/- each drawn on U.T.I Bank, Kolkatta Branch and also paid Rs.15,000/- towards expenditure to the complainant. As per the settlement, the complainant deposited cheque dated 12.11.2006 through his banker IDBI Bank Ltd, Siripuram, Visakhapatnam on 15.11.2006. The cheque came to be returned as unpaid due to “Payment stopped by the drawer” and the same was intimated to the complainant by the banker on 17.11.2006.The complainant issued a statutory notice. The notice came to be served on the 1st accused on 22.12.2006 and whereas the notice sent to the 2nd accused returned un-served with an endorsement “addressee left”. Therefore, the complainant filed a complaint before the Chief Metropolitan Magistrate, Visakhapatnam. The learned Magistrate took cognizance for the offence under Section 138/142 of N.I. Act and registered the complaint as C.C.No.144 of 2009. Hence, this Criminal Petition by the accused. 3. Heard learned counsel appearing for the petitioner-accused and learned counsel appearing for the 1st respondent-complainant. 4. Learned counsel appearing for the petitioner-accused submits that this Court in Criminal Petition No.4127 of 2008 quashed F.I.R in Crime No.159 of 2006 of III Town P.S., Law and Order, Visakhapatnam and the present complaint filed by the 1st respondent is nothing but replica of averments made in the earlier complaint, which formed basis for registering a case in Crime No.159 of 2006, and therefore, the petition deserves to be allowed. Learned counsel took me to the order passed by this Court in Criminal Petition No.4127 of 2006 laying much emphasis on para 11 of the order passed therein, which reads as hereunder:- “ In the case on hand, admittedly, there is an agreement between the parties. MoU was executed on 10.3.2004. There is no dispute about its execution. One of the conditions, inter alia, is that the complainant agreed to pay advance of Rs.5.00 lakhs (non-refundable) which would be used to provide tools and spares for providing onsite services and repairing of computer parts. Therefore, when there is mutual agreement between the parties, the complainant cannot now turn around and say that there is an inducement or demand for payment of Rs.5.00 lakhs. The allegation in the complaint is that the accused sent only a few of agreed tools required to the laboratory which are spurious and less priced. It is not in dispute that the accused sent certain materials. All the materials were sent in the year 2004. Those materials were checked and verified by the complainant for about one year, and thereafter, he kept quiet. Now, he turned around and saying that the material sent by the accused are spurious and less priced. It is not the case of the complainant that the accused entertained dishonest intention to cheat him at the time of execution of MoU. There is no entrustment of property to the accused or that the accused converted the same to their own use in violation of any contract.” 5. The contention of the learned counsel appearing for the petitioner appears to be impressive at the first blush but on close scrutiny of the material placed before me, I do not detain myself long to reject the same. 6. Learned counsel appearing for the 1st respondent submits that the present complaint is because of bouncing of the cheques issued by the petitioner-accused and the cheques which are bounced are not the subject matter in the earlier crime and therefore, any finding recorded in Crl.P.No.4127 of 2006 will not have any bearing on this petition. 7. The present complaint is filed on the basis of deed of settlement dated 11.7.2006. Under the settlement deed, the petitioner herein returned the money by way of cheques. The 1st respondent-complainant presented cheques for encashment and the cheques came to be returned. It gave a cause of action to the 1st respondent to initiate proceedings under Section 138 of the N.I.Act. It is the contention of the petitioners that the cheques were obtained by the 1st respondent-complainant by putting the petitioners in coercion. This is a fact, which is required to be examined during trial. Therefore, I find that this is not a fit case to quash the proceedings in C.C.No.144 of 2007 on the file of Chief Metropolitan Magistrate, Visakhapatnam in exercise of inherent powers of this Court under Section 482 Cr.P.C. 8. Accordingly, the Criminal Petition is dismissed. _____________________ B.SESHASAYANA REDDY, J Dt.22-07-2010 RAR THE HON’BLE SRI JUSTICE B.SESHASAYANA REDDY Criminal Petition No.2476 of 2007 (Dated : 22-07-2010)