Back
2012(1) Bankmann 415 (Cal.)
CALCUTTA HIGH COURT
Kalidas Mukherjee, J
Pradeep Kumar Malhotra and
Anr. —Petitioners
versus
The State of West Bengal
and Anr. —Respondents
CRR No. 756 and 955 of 2011
Decided on 22.6.2011
For the Petitioner:Krishnendu Bhattacherya Mr. Prodip Paul Mr. Partha Sarathi Mondal, Advocates.
IMPORTANT POINT
Disputed question of fact cannot be taken into consideration in an application under Section 482 Cr.P.C.
Headnote:Negotiable Instruments Act, 1881—Sections 138 and 141—Criminal Procedure Code, 1973—Section 482—Dishonour of cheque—Offence by company—Accused petitioners taking plea of tender of resignation prior to issuance of cheque— Since it is a disputed question of fact, it cannot be taken into consideration in an application under Section 482 Cr.P.C.—In view of facts of instant case it cannot be said that facts complained of do not constitute any offence—Points urged petitioner are matters to be considered at the time of trial—Criminal Application dismissed. (Paras 17 to 25)
Kalidas Mukherjee, J.— These are the two applications under Section 482 of the Code of Criminal Procedure praying for quashing of the Complaint Case No.C1950 of 2010 pending before learned 10th Judicial Magistrate, Alipore under Section 138 read with Section 141 of the Negotiable Instruments Act 1881. These two applications are taken up together and heard as those arise out of the same case. The petitioners have been arraigned as accused persons in the complaint filed under Section 138 read with Section 141 of the Negotiable Instruments Act.
2. The case of the complainant is that the petitioner M/s. Orient Investments is an investment partnership firm and since 19.8.05, has been engaged in business of providing financial assistance. In course of business three cheques were issued by the accused persons duly signed with the company seal in the legal and lawful discharge of the liability. In course of business a sum of Rs.4,50,000 was due and the accused company and the directors issued account payee cheque in the name of the complainant company drawn on State Bank of India, Kalighat Branch being Cheque No.221975 dated 22.6.2010. The complainant deposited all the account payee cheques bearing No.221998 dated 30.04.2010 amounting to Rs.7,91,101 Cheque No.221975 dated 22.6.2010 amounting to Rs.4,50,000 with the Bank. Both the cheques were drawn on State Bank of India, Kalighat Branch and another account 3 payee cheque drawn on Axis Bank Limited being Cheque No.138236 dated 20.3.2010 amounting to Rs.20,568. The said cheque as were deposited with the complainant’s banker Bank of Baroda, P.A.S. Branch on 30.6.2010 and the same were returned with a remark “funds insufficient” and the matter was intimated by the banker on 1.7.2010.
3. Thereafter, the complainant sent a notice under Section 138 of N.I. Act, through the learned Advocate for payment of the said amount within 15 days from the receipt of the said cheque issued by the accused persons. The said notice returned with a remark ‘not claimed’. Thereafter the accused persons on several occasions contacted the complainant’s agent over telephone and assured payment within a few days, but in vain.
4. It has been stated in the complaint that the accused persons issued the cheques in the discharge of their existing liability.
5. The learned counsel appearing on behalf of the petitioner submits that the demand notice issued by the Opposite party is not in accordance with law, in as much as, it has been issued on behalf of M/s Orient Investments and M/s. N.K. Choudhury HUF. The learned counsel submits that under Section 138 of the N.I. Act, the holder of the cheque can issue notice and under. Section 93 of the Act, the notice cannot be issued by more than one person. It is contended that the holder of the cheque as mentioned in Section 138 of the Act cannot be more than one person and in the instant case there are two distinct legal entities on whose behalf the notice was issued.
6. It is contended on behalf of the petitioner that in the notice no role was assigned in respect of each of the accused persons.
7. It is contended that Mrs. Rekha Malhotra and Mrs. Urvashi Korpal resigned prior to the issuance of the cheque which is evident from Form No.32 and, as such, the proceeding against them is not maintainable. It is contended that the demand notice is not inconsonance with the averments made in the complaint.
8. The learned counsel appearing for the petitioner has referred to and cited the decisions in M.A.A. Annamalai v. State of Karnataka1; Harshendra Kumar D. v. Rebatilata Koley and Ors.2; National Small Industries Corporation Limited v. Harmeet Singh Paintal and Another.3
9. The learned counsel appearing on behalf of the opposite party submits that merely by filing Form No.32 it would not, ipso facto, prove that Mrs. Rekha Malhotra and Mrs. Urvashi Korpal resigned prior to the issuance of cheque.
10. It is contended that this point is a pure question of fact which is required to be p
