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2005(1) Bankmann 246
CALCUTTA HIGH COURT
Debiprasad Sengupta, J.
Om Prakash Agarwal — Petitioner
versus
The State of West Bengal
& Anr. — Respondents
C.R.C. Nos. 1190-95 of 2004
Decided on 19.11.2004
Counsel for the Parties:
For the Petitioner: Joy Sengupta and Y. K. Khanna.
For the Opposite Party: R.P. Bhattacharyya and P. Bhattacharyya on CRR No. 1190/04.
For the Opposite Party: R. K. Ghosh and A. K. Choudhary.
For the State: Mirdha and P. Satpah In CRR No.1195/04.
IMPORTANT POINT
When cognizance of an offence under Section 138 Negotiable Instruments Act, 1881 has been taken by Magistrate against company, Magistrate can allow the complainant to plead the naming of proper accused persons by amendments later.
Headnote:Negotiable Instruments Act, 1881—Sections 138 and 141—Cr.P.C. 1973—Sections 200 and 482—Offence under Section 138 committed by company—Company and its Chairman and director prosecuted after failure to comply demand notice—Chairman dying during the pendency of proceedings—Application moved against two other directors to be impleaded who were also responsible for the conduct of the company’s business—Revision application under Section 482 Cr.P.C. to quash this—Contention that in original complaint nothing has been mentioned of those two directors—No demand notice was sent to them—Whether impugned order of cognizance suffers from any legal infirmity? (No)—Revision petitions dismissed.
Held: It is settled law that the Court takes cognizance of the offence and not of the offender. So in a proper case, if justice so requires, the learned Magistrate after taking cognizance of the offence is competent to allow the amendment of the complaint by naming the proper accused persons. So far as the service of demand notice upon the petitioner is concerned, I am of the view that where the Director of the company is prosecuted along with the company, no separate notice is required to be served upon the said Director. Whether the offence was committed with the consent or connivance of the petitioner and whether the petitioner was responsible to the company for its business at the time when the offence was committed-these are disputed questions of facts and cannot be considered in a revisional application under Section 482 of the Code of Criminal Procedure. Such points can only be decided by the trial Court after recording evidence. In view of the discussion made above, I am of the view that the impugned order does not suffer from any illegality and the learned Magistrate was justified in allowing the prayer of the complainant /opposite party. I do not find any reason to interfere with the said order. (Paras 14 & 15)
Result: Revision Application dismissed.
Debiprasad Sengupta, J.—Since similar point is involved in all the ten revisional applications, those are taken up analogously for disposal.
2. The petitioner has challenged an Order dated 28.1.2004 passed by the learned Chief Judicial Magistrate, Alipore, South 24 Parganas in Case No.C-2610/2000 under Section 138 of Negotiable Instruments Act, 1881 thereby allowing the application of the complainant/opposite party and adding the present petitioner and one Mannalal Chamaria as accused persons in the case.
3. For deciding the present applications, it is not necessary to discuss about the factual background of each case. The present proceeding was initiated on the basis of a complaint lodged by one Rupali Sarkar (complainant O.P. No. 2 herein) alleging that three cheques totalling an amount of Rs. 12,49,000/- were issued by the accused Raj Kumar Chamaria on behalf of the company namely M/s. Heritage Herbs Limited. On being dishonoured by the concerned Bank, the complainant sent demand notice to the accused company as also its Chairman namely Raj Kumar Cha-maria demanding payment of the cheque amount. In failure to make the payment, proceeding was initiated by the complainant alleging commission of offence under Section 138 of the Negotiable Instruments Act. The learned Magistrate issued process against the accused company as well as against the accused No. 2 being the Chairman of the company.
4. During pendency of the proceeding, the accused No. 2 Raj Kumar Chamaria died on 10th December, 2003. On 28.1.2004, an application was filed before the learned Magistrate stating that the accused No. 2, who was the Chairman and Director of the company, died on the date as aforesaid and subsequently, it came to the knowledge of the complainant that there are two other Directors namely Mannalal Chamaria and Om Prakash Agarwal in the said company at the material time. It was further stated that the cheques were issued by the accused company, where the accused No. 2 Rak Kumar was the signatory as Chairman of the company. The company (accused No. 1) was the principal offender and cheques were issued by the accused No. 2 on behalf of the company. In view of the provision of Section 141 of the Negotiable Instruments Act, the other Directors, Manager, Secretary or other officers of the company, who at the time the offence was committed was in-charge of and was responsible to the company for the conduct of its business, shall be deemed to be guilty of the offence and shall be liable to be proceeded against and punished accordingly. In such circumstances, it was prayed by the complainant that the other two Directors, namely Om Prakash Agarwal and Mannalal Chamaria may be impleaded accused persons in the case and process may be issued against them.
5. The learned Magistrate by his Order dated 28.1.2004 allowed such prayer and directed that the said two Directos be added as accused persons in the case and also directed issuance of process against those persons. Challenging such Order, the petitioner has preferred the present revisional application before this Court.
6. The main contention of the learned Advocate of the petitioner is that ther is no averment in the petition of complaint that the present petitioner was in-charge of or responsible to the accused company for its business and as such the present proceedings is not at all maintainable against him. It is the further contention of the learned Advocdate of the petitioner that in a case under Section 138 of Negotiable Instruments Act, certain conditions are to be satisfied in Order to arraign a person as an accused. In the present case, no demand notice was sent to the present petitioner demanding payment of the cheque amount and as such question of his failing to pay cannot arise. So, there cannot be any cause of action for which the present proceeding can be initiated.
7. In support of his contention, the learned Advocate of the petitioner relies upon a Judgement reported in (K.P.G. Na
