Calcutta High Court (Appellete Side)
Bijay Kumar Agarwal & Ors vs Messers Paceman Sales Promotion ... on 11 August, 2022
IN THE HIGH COURT AT CALCUTTA
CRIMINAL REVISIONAL JURISDICTION
APPELLATE SIDE
Present:
The Hon'ble Justice Ajoy Kumar Mukherjee
C.R.R. 1 of 2018
Bijay Kumar Agarwal & Ors.
-vs-
Messers Paceman Sales Promotion Private Limited
For the Petitioners : Mr. Pawan Kumar Gupta
Mr. A. Rai
Mr. Santanu Sett
Ms. Sofia Nesar
For the Opposite Party : Mr. Ayan Bhattacharjee
Mr. Amit Muhuri
Heard on : 5.8.2022
Judgment on : 11.08.2022
Ajoy Kumar Mukherjee, J.
1. Being aggrieved and dissatisfied with the proceeding being case No.
CS/0051867 of 2016 under Section 138/141 of the Negotiable Instruments
Act, 1881 (N.I. Act) pending before the Court of the learned Metropolitan
Magistrate, 20th Court at Calcutta, present application under section 482 of
the Code of Criminal Procedure (Cr.P.C.) has been preferred by
accused/petitioners.
2. Mr. Pawan Kumar Gupta, learned advocate for the petitioners at the
outset submits that he is not pressing this application for petitioner no. 1 and
2 but he is pressing this application for petitioner no. 3, Prem Ratan Lahoty.
Mr. Gupta contended that petitioner no. 1 and 2 are the Directors of M/s.
Ganapati Balaji Mills Private Limited and the opposite party is a non banking
finance private limited dealing with the business of real estate. On 14.12.2015,
the petitioners got a demand notice from the advocate of the opposite party
due to alleged non-payment of loan amount of Rs. 50 lakhs which was
allegedly taken by the said company on 12.7.2012. After receiving said
demand notice, the petitioner no. 3 gave reply vide letter dated 22.12.2016 to
the opposite party contending that he has already resigned before this incident
from the said company namely, M/s. Ganapati Balaji spinning Mills Private
Limited. On 14.1.2016, the present complaint case no. CS/0051867 of 2016
under Section 138/141 of the Negotiable Instruments Act, 1881 has been filed
by the opposite party against all the three petitioners even after receipt of
aforesaid reply dated 22.12.2016 given by petitioner no.3 herein. Learned
advocate for the petitioner submits that in the reply dated 22.12.2016
petitioner no. 3 sent documents to the opposite party in support of his
resignation on 12.07.2012. from the company.
3. Learned advocate for the opposite party Mr. Ayan Bhattacharjee submits
that complainant/ opposite party in his complaint, has specifically dealt with
the said issue in paragraph 9 (which should be read and treated as paragraph
no.12) of his complaint and it has been specifically stated that upon receipt of
the said reply from accused no. 5 i.e. petitioner no. 3 herein the petitioners
made inspection of the ROC records of the accused no. 1 and upon searching
opposite party obtained the annual return of accused no. 1 wherein the name
of accused no. 5/petitioner no. 3 herein appears as the Director of the accused
no. 1 company and hence the said notice sent by the accused no. 5/petitioner
no. 3, herein is totally a misconceived notice and sent with a mala fide intent.
4. Petitioner no. 3, Prem Ratan Lahoty has filed one form no. DIR-11 as
annexure and he pointed out that from column no. 4A and 4B, it is clear that
said Prem Ratan Lahoty resigned from the M/s. Ganapati Balaji Mills Private
Limited on 6.7.2012.
5. On the contrary, the opposite party filed one affidavit containing Form
DIR-12 and pointed out that as on 30.5.2016, the said Prem Ratan Lahoty was
shown as director of the said company and the column relating to the
resignation date ( as on that date) is lying blank. Moreover, referring a letter he
also pointed out that said petitioner no. 3, gave notice of resignation of
Directorship on 30.5.2016 contending that his directorship with the company
stands seized with effect from 30.5.2016.
6. In view of the above, it is clear that while the case of the petitioner No.3
is that the he resigned from the said company on 6.7.2012, on the contrary,
the case of the opposite party is that he resigned from the company only on
30.5.2016. The impugned three cheques are dated 20.08.2015, 22.08.2015
and 24.08.2015.
7. Accordingly the issue raised by petitioner no.3 herein is, whether
petitioner no. 3 has got any responsibility for the conduct of business of the
company in connection with the issuance of impugned cheque by the company
in respect of which proceeding under Section 138 of the Negotiable
Instruments Act has been initiated by the complainant/opposite party.
8. Needless to say that criminal prosecution is a serious matter, it affects
the liberty of a person. No greater damage can be done to the reputation of a
person than dragging him in a criminal case but while deciding an application
under section 482 of the code of criminal procedure, the High Court is only
required to examine the complaint as set out by complainant, white exercising
it's discretion to quash a complaint. It is fairly settled law that while exercising
inherent jurisdiction under section 482, in a case where complaint is sought to
be quashed , it is not proper for the High Court to consider the defence of the
accused or conduct roving enquiry in respect of merits of the accusations,
unless on the face of the document, it is beyond suspicion or doubt, placed by
the accused that the accusation against accused cannot stand. In such a case
in order to prevent injustice or abuse of process , it is incumbent upon High
Court to look into those documents, which have a bearing in the matter, even
at the initial stage.
9. Here the allegations in the complaint is clear from paragraph 9( serial
No. should be 12) and other paragraphs coupled with documents like DIR -12
and notice mentioning date of resignation, prima facie discloses that at the
time when the offence under section 138 of N.I. Act was committed, all the
three petitioners are in charge of and was responsible to the company for the
conduct of the business of the company as alleged in paragraph 4 of the
complaint. When the specific allegation in complaint supported by documents
like DIR-12 and notice of resignation, it is made clear that petitioners were
responsible for the day to day affairs of the company and it's decisions, the
defence that petitioner no. 3 was no longer the directors of the company at the
time when the cheque was presented and dishonoured, had to be
substantiated by the accused/petitioner and this could be done only at the
stage of trial.
10. In State of Madhya Pradesh Vs. Awadh Kishore Gupta and others,
reported in AIR 2004 SC 517, the Apex Court while dealing with the scope of
power under section 482 of the code observed:-
"13.It is to be noted that the investigation was not complete and at that
stage it was impermissible for the High Court to look into materials, the
acceptability of which is essentially a matter for trial. While exercising
jurisdiction under Section 482 of the Code, it is not permissible for the
Court to act as if it was a trial Judge. Even when charge is framed at
that stage, the Court has to only prima facie be satisfied about existence
of sufficient ground for proceeding against the accused. For that limited
purpose, the Court can evaluate material and documents on records but
it cannot appreciate evidence. The Court is not required to appreciate
evidence to conclude whether the materials produced are sufficient or
not for convicting the accused................"
11. Having considered the aforesaid facts and circumstances of the case,
CRR 1 of 2018 stands dismissed.
12. Since this is a proceeding, (being case No. CS/0051867 of 2016) under
Section 138/141 of the Negotiable Instruments Act, 1881 and pending for last
six years, learned Metropolitan Magistrate, 20 th Court at Calcutta is hereby
requested to make expeditious disposal of the case and to dispose of the entire
proceeding preferably within a period of six months from the date of the order,
without granting any unnecessary adjournment to either of the parties.
Urgent photostat certified copy of this order, if applied for, be given to the
parties upon compliance of all requisite formalities.
(AJOY KUMAR MUKHERJEE, J.)
