In cases under Section 138 of the Negotiable Instruments Act, the evidence of witnesses on behalf of the complainant shall be permitted on affidavit, and the sufficiency of grounds for proceeding under Section 202 Cr.P.C. can be satisfied through examination of documents and evidence on affidavit.

JUDGMENT

The present revision has been preferred praying for quashing of proceedings in connection with Complaint Case No. CS/114550/2016 under Section 138 read with Section 141 of the Negotiable Instruments Act, 1881 and corresponding to T.R. No.4984/2016 and now pending before the Court of the learned 6th Metropolitan Magistrate, Calcutta.

The petitioner’s case is that the opposite party lodged a complaint against the petitioner stating that the accused no. 1 is a company having its office at C-636, DSIDC, Industrial Area, Narela, Delhi- 110040 and is engaged in the business of Import and Export of goods and the accused nos. 2 and 3 are the directors of the accused no. 1 company and both of them look after day to day business affairs of the accused no. 1 and they are the persons who are fully aware and responsible for the commission of the said offence.

The complainant company had issued a cheque of Rs. 1,00,00,000/- (One Crore only) favouring the accused no. 1 towards loan and the said cheque was duly received, encashed and appropriated by the accused persons.

That as per mutually agreed terms and conditions, the accused persons in discharge of the existing debts and/or liabilities of Rs. 1,00,00,000/- (Rupees One Crore) only due to the complainant company, the authorized signatory of the accused no. 1 had issued a cheque bearing no. 000808 dated 30.07.2016 drawn on HDFC Bank, 16, Barakhamba Road, Ground Floor, DCM Building, New Delhi- 110001 of Rs. 1,00,00,000/- (One Crore Only).

The said cheque was presented within its validity period at the complainant’s bank, HDFC Bank Ltd., Stephen House Branch, Kolkata- 700001 for encashment but the same was dishonoured by the bank vide memo dated 26.08.2016 bearing the endorsement “ACCOUNT CLOSED”.

That such fact of dishonour of the cheque had been communicated to the accused persons by the complainant vide legal notice dated 08.09.2016 which was dispatched on the same date. However in spite of service accused persons have failed and/or neglected to make payment of the said sum of money within the stipulated period.

A copy of the petition of complaint as filed by the opposite party herein annexed and marked “P-1”.

Upon filing of the case by the complainant, the learned Chief Metropolitan Magistrate, Calcutta was pleased to take cognizance of the offence through order dated 25.10.2016 and was further pleased to transfer the records to the Court of the leaned 6th Metropolitan Magistrate, Calcutta for enquiry and disposal according to law.

After recording the initial deposition of the authorized representative of the Complainant Company as filed by them, the learned 6th Metropolitan Magistrate, Calcutta was pleased to issue process against your petitioners vide order dated 24.02.2016 under Section 138 read with Section 141 of the Negotiable Instruments Act, 1881.

Petitioner states that the allegations made in the complaint are fabricated, false, without any basis and do not constitute the ingredients of the alleged offences so far as the present petitioner is concerned.

The petition of complaint does not fulfill the essential ingredients of Section 141 of the Negotiable Instruments Act, 1881. The petition of complaint has failed to mention the specific role of the petitioner in order to link the petitioner to the offence as alleged in the complaint.

The complaint does not make out any case, much less a prima facie case, a condition precedent to set the criminal law in a motion. The learned Magistrate, without adverting as to whether the allegation in the petition of complaint prima facie makes out an offence in a mechanical manner issued process against the present petitioner.

The said proceeding instituted against the petitioners herein, is a clear abuse of the process of the Court, not maintainable in law and in the interests of justice, is liable to be quashed.

That order of issuing process is also violative of Section 202 of the Code of Criminal Procedure as the petitioner is a resident of Delhi