Calcutta High Court (Appellete Side)
Sunwal Tibrewal vs Unknown on 7 April, 2022
07.04.2022
SB
Ct. No.35
CRR 2718 of 2016
CRAN 1 of 2016
CRAN 3 of 2018
CRAN 6 of 2020
In the matter of : Sunwal Tibrewal
Mr. Ayan Bhattacharyya
Ms. Sutapa Mitra
Mr. Somdev Ash ... for the Petitioner
This is an application for quashing of Complaint Case
No. 106C of 2015 under Section 138 of Negotiable Instruments
Act, 1881 pending before the learned Judicial Magistrate, 3rd
Court, Bishnupur Bankura.
The sole ground that has been advanced on behalf
of the petitioner for quashing the complaint is that though the
relevant cheque was issued by a company namely, Basukinath
Food Processors Limited, through one of its directors, neither any
notice was given under Section 138(b) against the company nor
the said company was made a party in the complaint. Only the
director, who signed the cheque, was the sole accused in the
complaint.
Mr. Bhattacharyya, learned counsel on behalf of the
petitioner places reliance upon the judgments reported at (2012) 5
SCC 661 (Aneeta Hada vs. Godfather Travels and Tours
Private Limited) and (2019) 3 SCC 793 (Himanshu vs. B.
Shivamurthy).
The law appears to have been settled by the
Supreme Court in Aneeta Hada (supra) wherein it has been held
in paragraph 59 as follows:-
"59. In view of our aforesaid analysis, we arrive at the
irresistible conclusion that for maintaining the prosecution
under Section 141 of the Act, arraigning of a company as an
accused is imperative. The other categories of offenders
can only be brought in the drag-net on the touchstone of
vicarious liability as the same has been stipulated in the
provision itself. We say so on the basis of the ratio laid
down in C.V. Parekh which is a three-Judge Bench
decision. Thus, the view expressed in Sheoratan Agarwal
does not correctly lay down the law and, accordingly, is
hereby overruled. The decision in Anil Hada is overruled
with the qualifier as stated in para 51. The decision in Modi
Distillery has to be treated to be restricted to its own facts
as has been explained by us hereinabove."
The proposition of law as laid down in Aneeta Hada
(supra) had been followed in Himangshu (supra).
In the present case it appears that the cheque was signed
by the petitioner as a director of the company, but in the relevant
complaint the company namely, Basukinath Food Processors
Limited has not been arraigned as an accused. In view of the ratio
laid down in Aneeta Hada (supra) the complaint is not
maintainable.
Accordingly, the Complaint Case No. 106C of 2015 under
Section 138 of the Negotiable Instruments Act, 1881, pending
before the learned Judicial Magistrate, 3rd Court, Bishnupur
Bankura stands quashed.
However, quashment of this complaint case will not prevent
the opposite party to take any other steps in accordance with law.
The revisional application being CRR 2718 of 2016 along
with the connected applications being CRAN 1 of 2016, CRAN 3
of 2018 and CRAN 6 of 2020 are, accordingly, disposed of.
Urgent photostat certified copy of this order, if applied for,
be made available to the petitioner upon compliance with all the
requisite formalities.
(Kausik Chanda, J.)
