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1993 Supreme(Cal) 71
High Court Of Calcutta
AMAL KANTI BHATTACHARJI
COMPANY OF MANAGEMENT FOR BARANAGAR JUTE FACTORY - Appellant
Versus
ATIS DIPANKAR CHOWDHURI - Respondent
Criminal Revision 1550 Of 91
Decided On : 02/15/1993
ASHOK JAIN, B.K.JAIN, DIPAK DAS, K.P.MAJUMDAR, PRADIP GHOSH, SUDIPTA MOITRA
The prosecution under S. 138 of the Negotiable Instruments Act is not barred if the cheque is presented a second time, and the prosecution cannot be initiated without the leave of the Court in a case where the accused is a Committee of Management appointed by the Court.
Headnote:
NEGOTIABLE INSTRUMENTS ACT - S. 138 - DISHONOUR OF CHEQUE - PROSECUTION - CONDITIONS PRECEDENT - SECOND PRESENTATION OF CHEQUE - INTERPRETATION - STRICT CONSTRUCTION - PENAL STATUTES - PUBLIC POLICY - RECEIVER - LEAVE OF COURT - S. 141 - OFFENCES BY COMPANIES - VICARIOUS LIABILITY - COMMITTEE OF MANAGEMENT - STATUS.
Fact of the Case:
The petitioners, accused in a criminal proceeding under S. 138/141 of the Negotiable Instruments Act, 1881, filed a revisional application challenging the validity of the prosecution and praying for its quashing. The prosecution was initiated based on a complaint filed by the Manager (Recovery) of the State Bank of India, alleging that the petitioners had issued a cheque in favor of the Bank in discharge of certain debts, which bounced. The petitioners contended that the prosecution was vitiated by delay and non-compliance with the time schedule mentioned in S. 138.
Finding of the Court:
The Court held that the prosecution was bad for the following reasons: (1) The second presentation of the cheque was not barred by any law, and the intention of the legislature was to give the drawer of the cheque an opportunity to make payment in spite of the first default. (2) The prosecution was not instituted with the leave of the Court, which was necessary as the Committee of Management, against whom the prosecution was launched, was appointed by the High Court and was, therefore, a representative of the Court. (3) The Committee of Management could not be prosecuted as a company under S. 141 of the Negotiable Instruments Act, as it was not a company within the meaning of the said Section.
Issues: 1. Whether a second presentation of a dishonoured cheque is barred under S. 138 of the Negotiable Instruments Act? 2. Whether the prosecution can be initiated without the leave of the Court in a case where the accused is a Committee of Management appointed by the Court? 3. Whether the Committee of Management can be prosecuted as a company under S. 141 of the Negotiable Instruments Act?
Ratio Decidendi: 1. The Court held that a second presentation of a dishonoured cheque is not barred by S. 138 of the Negotiable Instruments Act. The intention of the legislature was to give the drawer of the cheque an opportunity to make payment in spite of the first default. 2. The Court held that the prosecution cannot be initiated without the leave of the Court in a case where the accused is a Committee of Management appointed by the Court. The Committee of Management is a representative of the Court and, therefore, enjoys the same protection as a receiver appointed by the Court. 3. The Court held that the Committee of Management cannot be prosecuted as a company under S. 141 of the Negotiable Instruments Act. The Committee of Management is not a company within the meaning of the said Section.
Final Decision: The Court allowed the revisional application and quashed the criminal proceedings against the petitioners.
( 1 ) THIS revisional application has been filed by two accused petitioners against whom a criminal proceeding under S. 138/141 of the Negotiable Instruments Act, 1881 has been pending. The aforesaid proceeding was started on the basis of a petition of complaint filed by the opposite party, namely the Manager (Recovery) of the State Bank of India, 24 Park Street, Calcutta alleging that the petitioners had issued a cheque in favour of the Bank in discharge of certain debts and that the said cheque bounced. It was accordingly alleged that an offence under S. 138 of the Negotiable Instruments Act was committed and that the accused was liable for punishment under the said Section, read with S. 141 of the Act. The relevant facts which are necessary for consideration of this revisional application may be briefly stated as follows :-
( 2 ) THE Baranagar Jute Factor, company within the meaning of the Companies Act, 1956, was a borrower of the O. P. Bank and the Bank filed a suit against the Company for realisation of a sum of Rs. 352. 43 lakhs. A winding up proceeding was started against the Company at the instance of the creditors and by an order of the' High Court a Committee of Management was formed under a scheme approved by the said Court and subsequently confirmed by the Supreme Court. The Bank being a secured creditor was outside the winding up proceeding. Some of the hypothecated assets of the Bank were sold to the said Committee of Management by an order of the High Court passed in the suit filed by the Bank and in terms of the said order the committee of Management (Accused No. 1) was to pay the sale price of Rs. 155 lakhs by installments to the Bank to be credited to the Company's account. The petitioner No. 1 issued a cheque in favour of the O. P. Bank under the signature of petitioner No. 2 being cheque No. 776924 dated 29-8-90 drawn on the Union Bank of India, Ezra Street Branch. The Bank presented the cheque through clearing on 11-9-90 to the said Union Bank of India who returned the cheque under a memo dated 12-9-90 with the remark "exceeds arrangement". Thereafter the Bank again presented the cheque on or about 22-11-90 through clearing to the Union Bank of India but this time also the bank of India but this time also the bank returned the cheque on 23-11-90 with the remark "refer to drawer. " The Bank wrote a letter to the Union Bank of India on 30-11-90 enquiring about the reason of the dishonour of the cheque to which the Bank's reply was that the balance in the relative account maintained by the Committee of Management with the bank was not sufficient to pass the said cheque. This reply was dated 1-12-90. Thereafter the Bank issued a notice dated 4-12-90 to the Committee of Management stating the fact of dishonour of the cheque and demanded payment of Rs. 2. 50 lakhs. The said letter was replied to by the Committee of Management under the signature of petitioner No. 2 by a letter dated 11-12-90 acknowledging the receipt of the letter and raising certain frevolous contentions. The amount of money demanded by the Bank was, however, not paid by the Committee of Management.
( 3 ) ON the basis of the above allegations a petition of complaint was filed by the O. P. No. 2 before the Chief Metropolitan Magistrate, Calcutta who took cognizance of the case under S. 138, read with S. 141 of the Negotiable Instruments Act and since then the said proceeding has been pending in the said Court. The petitioners have filed this revisional application challenging the validity of the prosecution and praying that the same be quashed as it was vitiated by delay and for non compliance within the time schedule mentioned in S. 138.
( 4 ) MR. Pradip Ghosh speaking for the petitioners raises several objections regarding the maintainability of the prosecution. In short his contentions are firstly that an offence under S. 138 of the Negotiable Instruments Act is deemed to have been committed on the first return
