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2008(1) Bankmann 5 (Cal.)
CALCUTTA HIGH COURT
Partha Sakha Datta, J.
Sona P. Walvekar —Petitioner
versus
State of West Bengal and Ors. —Opp. Parties
CRR No. 1222 of 2007
Decided on 16.10.2007
For the Petitioner:Mr. Jayamalya Bagchi and Mr. Kaushik Chatterjee, Advocates.
For the OP. No. 2:Mr. Amit Bhattacharjee, Ms. Sonali Wachel and Mr. Ayan Bhattacharjee, Advocates.
For the O.P. No. 1:Mr. Kashem Ali Ahmed, Advocate.
IMPORTANT POINT
Averment in complaint under Section 138 of N.I. Act that accused as director in company which issued the cheque was incharge of and responsible for day to day business of company was sufficient to try the accused director.
Headnote:Negotiable Instruments Act, 1881—Section 138 and 141—Dishonour of cheque issued by company—Prosecution of company and Directors—Petition for quashing summoning order on ground that complaint did not specifically aver in what manner the said director petitioner was responsible for conduct of business of company or otherwise responsible to it—Complaint averred that accused No. 2 and 3 were Managing Director and Director of said company and they were incharge of and responsible to said company for conduct of day to day business affairs of company—Averment was sufficient for trial—Case was at stage of defence evidence and thus not a fit case for exercise of inherent jurisdiction under Section 482 CrPC.
Held: In the instant case in the petition of complaint it has been averred as follows:
“ The accused No. 2 and 3 are the Managing Director and Director respectively of the said M/s Decal Aluminium Industries and Exports Pvt. Ltd. and they were incharge of and responsible to the said company for the conduct of the day to day business and affairs of the company”.
I think in view of the decisions as reproduced above this averment is sufficient for the purpose of commencement of trial and the accused would be in law to plead his defence at the trial.
Secondly, it has been submitted by the learned counsel for the opposite party No. 2 that between 4.8.1997 and 29.7.2000, three witnesses were examined, cross-examined and discharged. Cognizance was taken as far back as 9.7.1996. On 29.7.2000 the defence filed an application under 311 CrPC for re-examination of PW2 and the learned Magistrate having rejected that petition on 14.8.2001 the petitioner moved this Court in revision being CRR No. 668 of 2003 which was disposed of on 15.12.2005 allowing that petition and there was a direction for ex-examination of such witnesses within three months from communication of the said order. I find from the record that prosecution case was closed and 2nd April 2007 was fixed for evidence of defense witness, if any, and for argument and at this stage this revision application has been filed which I find to be not maintainable. In Amarchand Agarwala v. Shanti Bose, 1973 (4) SCC 10, it has been held that when two prosecution witnesses and a Court witness remained only to be examined the proper course at this stage to be adopted by the High Court was to allow the proceeding to go on and to come to its logical conclusion, one way or other and declined to interfere with those proceedings. In M/s. Zoom Vision v. M/s P. Manickam and Company, 2001 DCR 392, the same principle was reached relying upon Amarchand v. (supra).
This is not a case for quashing of a proceeding. Having regard to guidelines in State of Haryana v. Bhajan Lal and RD Kapur v. State o Punjab, I do not find that this is a case, which requires intervention from this Court under Section 482 of the CrPC more particularly when the trial has almost come to close. (Paras 12 to 14)
Result: Petition dismissed.
P.S. Datta, J.—By this revisional application dated 29.3.2007 under Section 482 of the CrPC, prayer has been made for quashing of a proceeding being case No. C-296 of 1996 pending before the learned Metropolitan Magistrate, 8th Court, Calcutta on the grounds inter alia that the learned Magistrate without application of judicial mind took cognizance of offence under Section 141 of N.I. Act which makes it a mandate that in order to bring an accusation against the company or a firm or its directors, it is necessary to aver and prove that any director was in-charge or responsible to day to day running of the business of the company and in what manner the said director was responsible for the conduct of business of the company or otherwise responsible to it in regard to its findings and in absence of such pleading no prosecution can lie under the said section of the law.
2. The opposite party No. 2 lodged a complaint with the learned Metropolitan Magistrate, 8th Court, Calcutta against M/s Decal Aluminium Industries and Exports Pvt. Ltd. Mr. Pradip Shankarrao Walvekar, Managing Director of the said company and Mrs. Sone P. Walvekar, Director of the said company alleging that the accused No. 1 towards discharge of legal liability issued two cheques being number 230463 dated 30.4.1996 for Rs. 25,00,000 drawn on Rupees Co-operative Bank Ltd., Premnagar Branch, Pune and cheque No. 224554 dated 30th April 1996 for Rs. 5,00,000 only drawn on State Bank of Hyderabad, Pune Branch in favour of the complainant. Both the cheques were signed by the accused No. 2 and delivered by him also to the complainant at his office at 163 Muktaram Babu Street, Calcutta-700007. The complainant deposited on 21.5.1996 the two cheques with the bank namely the Federal Bank Ltd., Burrabazar Branch, Calcutta which on 31st May 1996 informed the complainant that both cheques had been dishonoured for insufficiency of fund vide memo No. dated 24.5.1996. Then followed statutory notice dated 5.6.1996 demanding payment of the amount covered under the bounced cheques. The notice was duly received by the accused No. 1 on 16.6.1996, while accused No. 2 and 3 refused to receive and acknowledge the notice and the notice was returned back to the complainant’s counsel with the remark ‘refused’ made by the postal peon on10.6.1996. However, on 16.6.1996 the accused persons paid back Rs. 5,00,000 by a demand draft dated 11.6.1996 drawn in favour of the complainant payable at Bank of Maharashtra, Calcutta but no payment was made in respect of the other cheque being No. 230163 dated 30th April, 1996 to the complainant within 15 days of the receipt of the notice and hence the prosecution.
3. In the midst of the trial of the case, the accused No. 2 Mrs. Sone P. Walvekar said to be Director of the accused No. 1 company took out the revisional application to challenge the proceeding against her on the sole ground that vicarious liability cannot be fastened against her unless in terms of Section 141 of the N.I. Act there is clear averment in the petition of complaint that the petitioner was in-charge and/or responsible for the day to day running of the business of the company and further it is averred as to in what manner the petitioner was responsible for the conduct of the business of the company or otherwise responsible to it in regard to its functioning and as in the instant petition of complainant such pleading is totally absent, and as therein no specific overt act has been attributed to the petitioner regarding involvement of the petitioner in the commission of the alleged offence and continuance of the proceeding before the learned Magistrate would be an abuse of the process of Court. This is the only ground canvassed in the revisional application.
4. I have heard Mr. Joymalya Bagchi and Mr. Kaushik Chatterjee, learned advocates for the petitioners, Mr. Amit Bhattcharjee, learned advocate appearing with Ms. Sonali Wachal and Mr. Ayan Bhattcharjee learned advocates for the
