Back
IN THE HIGH COURT OF CALCUTTA
KANCHAN CHAKRABORTY, J.
Fortune Multi Trader - Appellant
Versus
Everett Travel Traders - Respondent
C.R.R. No. 2616 of 2007 with C.R.A. No. 2482 of 2007.
Decided On : 14-01-2012
For the Appellant : Mr. Amit Bhattacharyya, Mr. Y.Z. Dastoor, Ms. Mayukni Mitra and Mr. Indrajit Adhikari, JJ.
For the Respondent:Mr. Sandipan Ganguly, Mr. Ayan Bhattacharyya and Mr. Ayan Chakraborty, Advocates.
A company, even if not incorporated or registered under the Companies Act, can file a complaint under Section 138 of the Negotiable Instruments Act through its agent or authorized person, as long as it is a business association of individuals.
Headnote:
NEGOTIABLE INSTRUMENTS ACT - COMPLAINT - MAINTAINABILITY - PAYEE/HOLDER - SECTION 142(A) - LEGAL ENTITY - SECTION 141 - INTERPRETATION - A complaint under Section 138 of the Negotiable Instruments Act can be filed by a company through its agent or authorized person, even if the company is not incorporated or registered under the Companies Act, as long as it is a business association of individuals.
Fact of the Case:
The complainant, M/s. Everett Travel Service, a division of Everett India Private Ltd., filed a complaint under Section 138 of the Negotiable Instruments Act against the petitioners for issuing a cheque that was returned due to "payment stopped by the drawer." The petitioners challenged the maintainability of the complaint on the ground that the complainant was not a juristic person and could not be represented by any person.
Finding of the Court:
The court held that the complainant, M/s. Everett Travel Service, was a business association of individuals and, therefore, could be considered a "payee" within the meaning of Section 142(a) of the Negotiable Instruments Act. The court also held that the complainant could file a complaint through its agent or authorized person, as it had obtained permission from the court to be represented by its authorized agents.
Issues: 1. Whether a company can file a complaint under Section 138 of the Negotiable Instruments Act through its agent or authorized person, even if the company is not incorporated or registered under the Companies Act. 2. Whether the complainant, M/s. Everett Travel Service, was a "payee" within the meaning of Section 142(a) of the Negotiable Instruments Act.
Ratio Decidendi: 1. The language used in Section 142(a) of the Negotiable Instruments Act unequivocally and unmistakably qualifies a payee of a cheque to lodge a complaint for prosecuting the drawer of the cheque under Section 138 if other requirements are fulfilled. 2. The definition of "company" in Section 141 of the Negotiable Instruments Act includes a firm or other association of individuals. 3. The complainant, M/s. Everett Travel Service, was a business association of individuals, although not incorporated. 4. The complainant carried on its business independently, maintained its own bank account, received orders for air-tickets in its own name, and placed bills to its customers. 5. The complainant was the "payee" as defined in Section 142(a) of the Act and could maintain a complaint through its agent or authorized person.
Final Decision: The revision applications were dismissed, and the concurrent findings of the lower courts were upheld.
Kanchan Chakraborty, J.
1. M/s. Everett Travel Service lodged one complaint under section -138 of the Negotiable Instruments Act, being no-C-129 of 1999 against 1 (M/s. Multi traders Ltd & 2) Bharat qumar Nandi (hereinafter referred to as petitioners) in the court of Ld. 10th Metropolitan Magistrate, Calcutta. The petitioners were found guilty and, accordingly, an order of conviction was recorded. The petitioners preferred appeals separately challenging the order of conviction and sentence. The appeal preferred by Bharat Qumar Nandi was registered as Criminal Appeal No-11 of 2006 while the appeal preferred by the M/s. Fortune Multi-traders Ltd. Was registered as Criminal Appeal No.-12 of 2006. The Ld. Additional Sessions Judge, FT court no-5, Calcutta disposed of both the appeals separately and had taken concurrent findings with slight modification in respect of sentence. The petitioners Bharat Qumar Nandy and M/s. Multi traders Ltd. challenged the legality, validity and propriety of the judgment of the Ld. Additional court by filing these two revision applications - CRR-2482 of 2007 and CRR-2616 of 2007, respectively. Since, the revision applications are arising out of one judgment and points involved are same, both the applications are disposed of by this common judgment.
The petitioners have taken the following points in their applications :-
(i) that the Ld. Court failed to take note of the legal position that the complainant not being a person in the eye of law having any legal entity, the petition of complaint filed through a representative, was not maintainable in law;
(ii) that the Ld. Court erred in not holding the trial under section 326 of the Code of Criminal Procedure in view of Section 143 of the Negotiable Instruments Act.;
(iii) that the Ld. Court failed to take note of the fact that no authority to file the complaint was proved;
(iv) that the Ld. Court erred in not believing the testimony of the witness Anjan Banerjee in his cross-examination;
(v) the judgments being otherwise bad in law, are liable to be set aside.
At the Bar, the following decisions have been referred to :
(a) Saraswati Trading Company v. St. of Gujrat & Anr., 2007 Cri.L.J 895;
(b) Municipal council v. Prabhu Narain, AIR 68(Raj) 297;
(c) K. Ramachandra Rao v. State of A.P., 2005 (2) ALT 607 (FB);
(d) Firm Sadasukh Janki Das v. Kishen Pershad, AIR 1918 P.C. 146;
(e) M.M. Abbas Brothers v. Chethandas Fatechand, AIR 1979 Madras 272.
(f) Rajesh Bhalchandra Chalke v. State of Maharashtra, 2011 SED, 64 (Bombay) F.D.
(g) Govind Ram Channani v. Latha & Ors., 2010(1) Bankmann 266 (KAR)
(h) Sankar Finance & Investment Vs. State of A.P. (2008)8 SCC 536 MMTC Limited & Anr. v. Med Chm. v. P. Limited, (2002) SCC (Cri) 212.
(i) Asish C. Shah v. M/s Seth Developers Private Limited, 2011 ALL M.R. (Cri) 1528.
(j) Milind Shripab Chandurkar v. Kalim M. Khan, AIR 2011 SC Criminal 769.
(k) Janki Vashdeo Vhojwani v. Indusind Bank Ltd., 2005 (2) ALT 57 SC.
(L) M/s Manvi Co. Operative Bank Limited v. Nimesh D. Thakra, 2011 SCD 105 (SC).
(M) Rajen Sengupta v. State of West Bengal, 2011 SCD 1185 (Cal)
(N) Pradip Kumar Manhotra v. State of West Bengal, 2011 SCD 1129 (Cal).
(o) Swapan Mondal v. Godrej Agrovet Limited, 2010 (2) CHN (Cal) 889.
(P) K. Prakashan v. P. K. Surenderan, (2008)1 SCC 258.
(q) Krishan Jarandan Bhat v. Dattatrayag. Hegde, (2008)2 SCC (Cri) 166.
(r) Sumit Ranjan Chakraborty v. Tapas Kumar Nandi (2011)2 C Cr. LR (Cal) 168.
(s) M/s. M.M.T.C. Ltd. & Anr. v. M/S. Medchl Chemicals & Pharma P. Ltd. & Anr. 2002(1) SCC 234.
(t) Shivaji Sampat Jagtap v. Rajan Hiralal Arora & Anr. 2007 CRI. L. J. 122
(u) Ranjan Sengupta v. State of West Bengal & Ors., 2011 (1) Bankmann 452 (Cal)
(v) Rangappa v. Sri Mohan, 2010(3) RCR(Criminal) 164.
2. It would be proper to look into the prosecution in question to appreciate the entire matter. M/s. Everett Travel Service (herein after referred to as the O.P.), a division of Everett India Private Ltd. Had business transaction with M/s. Fortune Mult
