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High Court Of Calcutta
Before Sadhan Kumar Gupta, J.
PRASANTA KUMAR BASU - Appellant
Versus
NARANDRA KUMAR ANCHALIA - Respondent
C. R. A. 141 Of 2001
Decided On : 11/22/2006
NEGOTIABLE INSTRUMENT ACT - SECTION 138 - SERVICE OF NOTICE - VALIDITY OF NOTICE - MAINTAINABILITY OF COMPLAINT - AUTHORIZED AGENT - PROPRIETORSHIP FIRM - PAYMENT OF AMOUNT - SECTION 251 CRPC COMPLIANCE - SECTION 465 CRPC - IRREGULARITY - SECTION 328 CRPC - REFERENCE TO CHIEF METROPOLITAN MAGISTRATE - SECTION 138 NI ACT - CONVICTION - APPEAL - ACQUITTAL - HIGH COURT POWER TO REVIEW - SECTION 142(A) NI ACT - COMPLAINT BY AUTHORIZED REPRESENTATIVE - GENERAL POWER OF ATTORNEY - PERMISSION OF COURT - FULL BENCH DECISION OF ANDHRA PRADESH HIGH COURT - CONDITIONS FOR FILING COMPLAINT BY AUTHORIZED AGENT - DEFECTIVE COMPLAINT - PROCEEDING LIABLE TO BE SET ASIDE.
Fact of the Case:
The appellant, Manager of M/s. L. M. Enterprises, filed a petition of complaint under Section 138 of the N. I. Act against the accused/respondent for dishonoring two account payee cheques drawn on Indian Overseas Bank, Chowranghee Branch in favor of the appellant company. The accused challenged the service of notice and the maintainability of the case as the complaint was not filed by the proprietor himself. The learned Metropolitan Magistrate held the accused guilty under Section 138 of the N. I. Act and referred the matter to the learned Chief Metropolitan Magistrate as per provisions of Section 328 of Cr. P. C. The learned Chief Metropolitan Magistrate convicted the accused and sentenced him to pay a fine of Rs. 10,00,000/- in default to suffer rigorous imprisonment for one year. On appeal, the learned City Sessions Court set aside the order of conviction and acquitted the accused.
Finding of the Court:
The High Court held that the notice was duly served upon the accused as it was delivered at his place of business by the postman and should be deemed to have been served upon him. The contents of the notice were also found to be legally valid. However, the Court held that the petition of complaint was not maintainable as it was not filed by the proprietor himself and he did not come forward to the Court for giving deposition. The Court also held that the accused was not properly examined under Section 251, Cr. P. C. as the substance of allegation was not properly stated to him at the time of such examination. The Court further held that the fact that the entire amount in question had been fully realized by the complainant by way of filing a civil suit did not preclude the continuation of the proceedings under the N. I. Act. However, the Court held that the petition of complaint was defective as it was filed by an authorized agent who was not the payee or the holder of the cheque in due course and did not have the necessary authority to file the complaint on behalf of the proprietor. The Court relied on the Full Bench decision of the Andhra Pradesh High Court which held that a power of attorney of a payee or a holder in due course of a dishonored cheque can file a complaint for an offence under Section 138 of the Act after obtaining permission from the court, either before or after filing of the complaint.
Issues: 1. Whether the notice was properly served upon the accused? 2. Whether the contents of the notice were legally valid? 3. Whether the petition of complaint was maintainable? 4. Whether the accused was properly examined under Section 251, Cr. P. C.? 5. Whether the fact that the entire amount in question had been fully realized by the complainant by way of filing a civil suit precluded the continuation of the proceedings under the N. I. Act? 6. Whether the petition of complaint was defective?
Ratio Decidendi: 1. The notice was duly served upon the accused as it was delivered at his place of business by the postman and should be deemed to have been served upon him. 2. The contents of the notice were also found to be legally valid. 3. The petition of complaint was not maintainable as it was not filed by the proprietor himself and he did not come forward to the Court for giving deposition. 4. The accused was not properly examined under Section 251, Cr. P. C. as the substance of allegation was not properly stated to him at the time of such examination. 5. The fact that the entire amount in question had been fully realized by the complainant by way of filing a civil suit did not preclude the continuation of the proceedings under the N. I. Act. 6. The petition of complaint was defective as it was filed by an authorized agent who was not the payee or the holder of the cheque in due course and did not have the necessary authority to file the complaint on behalf of the proprietor.
Final Decision: The appeal was dismissed, and the judgment of the learned Sessions Judge acquitting the accused was affirmed.
( 1 ) THIS criminal appeal has been preferred against the judgment passed by the learned City Sessions Judge, 8th Bench, Calcutta in Criminal Appeal No. 21 of 1999 whereby he acquitted the accused for the offence under Section 138 of the N. I. Act.
( 2 ) THE case of the appellant is that he is the Manager of the firm M/s. L. M. Enterprises and being duly empowered and authorized by the proprietor of the said firm, he filed a petition of complaint under Section 138 of the N. I. Act against the accused/respondent in the Court of the Chief Metropolitan Magistrate, calcutta. Said case was registered as case No. C/1815/95.
( 3 ) IT was alleged in the said complaint, by the complainant that the accused/respondent as the proprietor of M/s. Sree Ramdevji Art International, in discharge of his existing liabilities issued two account payee cheques of Rs. 5,00,000/- each drawn on Indian Overseas Bank, Chowranghee Branch in favour of the appellant company. But those cheques were dishonoured and returned back to the appellant company. A notice was sent to the accused demanding payment of the amount as mentioned in those two cheques within 15 days from the receipt of the said notice. However, as the accused failed to make the payment, so the petition of complaint was filed against the accused by the complainant.
( 4 ) DURING trial, charge under Section 138 of the N. I. Act was framed against the accused who pleaded not guilty and claimed to be tried. The accused contested the case challenging the service of the notice as well as the maintainability of the case. The complainant examined three witnesses while the defence also examined three witnesses including himself.
( 5 ) LEARNED Metropolitan Magistrate 16th Court Calcutta, upon consideration of the evidence on record, was pleased to hold the accused guilty for the offence punishable under Section 138 of the N. I. Act. But as he was of the opinion that he could not impose adequate sentence, as provided in the statute, so he referred the matter to the learned Chief Metropolitan Magistrate as per provisions of Section 328 of Cr. P. C.
( 6 ) LEARNED Chief Metropolitan Magistrate by his judgment dated 17. 8. 1999 held the accused guilty for the offence under Section 138 of the N. I. Act and sentenced him to pay fine of Rs. 10,00,000/- in default to suffer rigorous imprisonment for one year with the direction that 80% of the fine amount, if realised, would be paid to the complainant by way of compensation.
( 7 ) AGAINST the said order of conviction, the accused preferred an appeal before the learned City Sessions Court and said Court by his judgment dated 31. 01. 2001 was pleased to set aside the order of conviction, as passed by the learned Chief Metropolitan Magistrate, Calcutta and acquitted the accused.
( 8 ) AS the complainant/appellant is aggrieved by the said order of acquittal of the accused by the learned Sessions Judge, so this criminal appeal has been preferred by the complainant before this Court after obtaining special leave. It has been alleged in the appeal, as filed by the complainant, that the learned Sessions Judge was not at all justified in holding that the notice was not properly served upon the accused and the notice is also not legal and valid in the eye of law and that the petition of complaint was not entertainable as it was not filed by the proprietor himself. According to the appellant, the findings of the learned Sessions Judge are absolutely illegal and improper and those are perverse in nature causing failure of justice. So the appellant has prayed for setting aside the order of acquittal, as passed by the learned Sessions Judge.
( 9 ) LEARNED Advocate for the appellant argued that the learned Sessions judge acquitted the accused/respondent mainly on three grounds viz. 1) the notice was not properly served upon the accused; 2) the notice is also not legal and valid and 3) since the complainant is a proprietorship firm and sinc
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