Rakesh S. Kathotia & Ors vs State Of West Bengal & Anr
2021 Latest Caselaw 32 Cal

Form No. J(2)

IN THE HIGH COURT AT CALCUTTA Criminal Appellate Jurisdiction Appellate Side

Present:

The Hon'ble Justice Jay Sengupta

CRR 1636 of 2020

Rakesh S. Kathotia & Ors.

Vs.

State of West Bengal & Anr.

For the Petitioners : Mr. Sabyasachi Banerjee : Mr. Ayan Bhattacharyya Mr. Deepak Jain

For the opposite party 2 : Mr. Sandipan Ganguly Mr. Abhijit Chowdhury

Heard on: : 05th January 2021

Judgment on : : 05th January 2021

The Court:

This is an application for quashing of a complaint case

under Sections 138 and 141 of the Negotiable Instruments Act so far

as the present petitioners are concerned.

Supplementary Affidavit filed on behalf of the petitioners

is taken on record.

Learned counsel appearing on behalf of the petitioners

submits as follows. The petitioner nos. 1 and 2 had resigned from the

accused company as directors on 21.06.2019 and 21.08.2019,

respectively, much before the date 01.12.2019 on which the cheque in

question was issued. The petitioner no. 3 was not even a director of

the accused company and was a mere shareholder. As such, the

present petitioners could not have been arraigned as accused in the

present case. Reliance is placed on 2011(3) SCC 351, Harshendra

Kumar D. Vs. Rebatilata Koley.

Learned senior counsel for the complainant / opposite

party no. 2 submits that as per Section 141 of the Negotiable

Instruments Act, not only a director but anyone else in charge of and

responsible to the company for the conduct of this business can be

added as an accused.

I have heard the submissions of the learned counsels for

the parties and have perused the revision petition and the

supplementary affidavit.

It appears from the respective Form Nos. DIR 11 and 12

that the petitioner nos. 1 and 2 had indeed resigned as directors of the

accused company, much before the issuance of the cheque.

Admittedly, the petitioner no. 3 was not a director of the accused

company.

Although there are some rather ritualistic averments in

the petition of complaint that even the present petitioners were in

charge of and responsible to the company for conduct of a business, it

is not clear as to how and in what capacity they could be held

accountable.

In view of the ratio laid down made by the Hon'ble Apex

Court in the case of Harshendra Kumar D (supra), the petitioner

nos. 1 and 2 have made out a case for quashing of the proceeding so

far as they are concerned. I also do not find any prima facie material

to keep the petitioner no. 3 arraigned as accused in this case.

In view of the above and in the interest of justice, the

impugned proceeding is quashed so far as the present petitioners are

concerned.

However, if any cogent evidence comes up against the

present petitioners such that they could be roped in as accused by

invoking Section 141 of the Negotiable Instruments Act, the

complainant shall be at liberty to make an appropriate prayer before

the learned trial Court.

Let the learned trial Court conclude the proceeding as

expeditiously as possible.

With these observations, the revisional application is

disposed of.

Urgent photostat certified copy of this order may be

supplied to the parties expeditiously, if applied for.

(Jay Sengupta,J.)

SB