Per D.N. Patel, J

1. This writ petition has been preferred against the order passed by the Addl. Sessions Judge-IX, Dhanbad dated 5th April, 2006 in Cr. Revision No.49/2004 (Annexure 8 to this writ petition).

FACTUAL BACKGROUND

i. It appears that the respondent No.2, who is a Manager of M/s. M.V. Trans India, a partnership firm, lodged a complaint case bearing Complaint Case No.742 of 2003 before the Chief Judicial Magistrate, Dhanbad under Section 406 and 420 of the Indian Penal Code as well as under Section 138 of the Negotiable Instruments Act, 1881 on 23rd June, 2003.

ii. It appears that as per the Complainant-Partnership firm Rs.15 Lacs were given to the accused persons by way of two demand drafts – one is for Rs. Seven Lacs and another for Rs.8 Lacs, both dated 3rd April, 2003, for business purposes to the accused No.1, namely, M/s. Ravi Udyog (Private) Limited.

iii. Further, looking to the complaint it appears that there is a allegation against the accused persons that the accused persons have dishonestly induced the complainant to pay Rs.15 Lacs and the accused persons have caused wrongful loss to the complainant-partnership firm and have obtained wrongful gain and there are allegations under Sections 406 and 420 of the Indian Penal Code to be read with Section 138 of the Negotiable Instruments Act, 1881.

iv. Several other facts have been narrated in detail in the complaint petition, annexure 1 to this writ petition.

2. Upon hearing the complainant, the Judicial Magistrate, First Class, Dhanbad on 31st July, 2003 pointed out that there is prima facie offence committed by the petitioners and accordingly, notices were issued upon the petitioners and against this notice issued by the Judicial Magistrate, First Class, Dhanbad, Criminal Revision petition was instituted by these petitioners bearing Cr. Revision No.49 of 2004 before the Addl. Sessions Judge-IX, Dhanbad which was dismissed by the Addl. Sessions Judge-IX, Dhanbad vide order dated 5th April, 2006 and it has been pointed out in the order that these issues which are raised by these accused persons, who are the petitioners, can very well be raised before the Judicial Magistrate, First Class, Dhanbad at the stage of hearing on the point of framing of charge. It appears that prima facie there is evidence against these writ petitioners and hence, notices were issued by the Judicial Magistrate, First Class, Dhanbad. All the points which are agitated before this Court, can very well be agitated before the Judicial Magistrate, First Class, Dhanbad at the time of framing of charge. Being aggrieved by this order the Addl. Sessions Judge-IX, Dhanbad dated 5th April, 2006, the present petition has been preferred stay has been granted against further proceedings in the Complaint Petition No.742 of 2003 from 2nd April, 2007 and today this matter has been finally heard by this Court.

ARGUMENT CANVASSED BY THE COUNSEL FOR THE PETITIONERS

i. The complainant cannot file Complaint Case as per subsection (a) of Section 142 of the Act, 1881 and to substantiate this argument, the petitioners are relying on the judgment rendered by the Hon’ble Supreme Court reported in (2008) 8 SCC 536 (para 9), (13) 1 JBCJ 54 (para 9).

ii. The liabilities or the role played by of these accused persons have not been mentioned in the complaint petition by the complainant and therefore also, the complaint filed by the complainant is not tenable at law. To substantiate this argument, the petitioners are relying upon the judgments reported in (2010) 3 S.C.C. 330 (paragraph 25) and (2007) 9 S.C.C. 481 (paragraph 8).

iii. No notice was given to the Directors under the Act of 1881. Thus, Company’s no other directors or accused was given the notice and, hence also, the order passed by the Judicial Magistrate, First Class, Dhanbad deserves to be quashed and set aside. To substantiate this argument, the petitioners are relying upon the decision rendered in (2007) 1 East. Cr. Cases 331 (Madras High Court, D