ORDER

P.S. Datta, J.—Heard the learned counsel for the parties.

2. CRR No.1657/08 and CRR No.1659/08 are heard together as the parties are the same and they are raise common question of law and fact.

3. CRR No.1657/08 arose out of Case No.C-1560/2000 under Section 138/141 of the N.I. Act now pending before the learned Metropolitan Magistrate, 13th Court, Calcutta. In the said case the accused persons are alleged to have issued towards discharge of debt or liability two cheques for Rs.40 lakhs drawn on UTI Bank, Purasawalkam (Chennai Branch). The cheques got dishonoured. A statutory notice followed and the case was filed on 18th January, 2008 payments having not been made under Section 138/141 of the N.I. Act.

4. CRR No.1659/08 arose out of Case No.C-1559/2000 under Section 138/141 of the N.I. Act now pending before the learned Metropolitan Magistrate, 13th Court, Calcutta. In that case also the present petitioners issued in favour of the O.P. No.2, two cheques for Rs.10 lakhs + Rs.87,341/- towards discharge of debt or other liability and the cheques having been dishonored, statutory notice followed. Payments having not been made, the case was filed.

5. It has been stated in both the complaints that the accused no.1 is a company within the meaning of Companies Act, 1956 having their office in Chennai and accused nos.2, 3, 4 and 5 are the Directors and Office-in-Charge of the said company who are jointly as well as severely in-charge of and or responsible to the said company for their day to day business and they also enjoyed the overall control over the regular affairs of the said company at the material time when the offences were committed and all of them jointly as well as severely made the petitioners company.

6. Mr. Milon Mukherjee, learned advocate for the petitioners in both the revisional applications have taken number of points. He read out the petition of complaint to submit at the outset that from the petition of complaint, it would not appear that there has been any creation of debt or existence of any liability towards discharge of which the cheques allegedly were issued and got bounced. My attention has been drawn to Paragraph 4 of the petition of complaint. In Paragraph 4 of the complaint, it has been stated that the petitioners company gave business loan to the accused company by cheques through authorised representative one Mr. Bajranglal Bengani @ B.L. Jain of Chenni and the said Mr. Bajranglal Bengani @ B.L. Jain had been collecting from the accused persons payments towards interest. Paragraph 5 of the petition of complaint (CRR 1659/08) inter alia relates that Mr. Jain sent two cheques for Rs. 97,341/- to the complainant after the same were issued by the accused persons and interest after deduction of TDS. Similarly, averments have been made in Paragraphs 4 and 5 of the CRR No.1657/08.

7. Now Mr. Mukherjee submits that there has not been any creation of loan or debt between the complainant company and the accused because one Mr. Bajranglal Bengani @ B.L. Jain allegedly gave money to the accused persons and there has not been any transactions between the complainant company and the accused persons.

8. The second submission of Mr. Mukherjee is that it was Mr. Bajranglal Bengani @ B.L. Jain who was the holder of the cheque and at no point of time the cheques would be with the complainant company.

9. The third submission of Mr. Mukherjee is that Mr. Bajranglal Bengani @ B.L. Jain has not been made a witness in this case and it was he who could have said as to whether there was creation of any debt or liability towards discharge by the accused persons in favour of the complainant.

10. The fourth submission of Mr. Mukherjee is that one of the Directors namely accused no.5 resigned from the Directorship of the company before the transactions in questions and the learned Magistrate did not take into consideration of the fact that in view of Form 32 submitted before the Registrar of Companies the said petition no.5 c