Suresh Kumar Somani vs Tushita Properties Private ...
2022 Latest Caselaw 1324 Cal

D/L6 March 21, CRR No.1762 of 2018

With Bpg.

CRAN 1 of 2019 (Old CRAN 2041 of 2019) With CRAN 2 of 2021

In Re: An application under Section 482 of the Code of Criminal Procedure, 1973;

Suresh Kumar Somani Versus Tushita Properties Private Limited

Mr. Krishnendu Bhattacharya, Mr. Rajib Mullick, Mr. Priyankar Ganguly, Ms. Sonia Mukhrjee, Ms. Shalini Bairagi.

...for the petitioner.

Mr. Avik Ghatak, Ms. Afreen Begum, Mr. Sagnik Mukherjee.

...for the opposite party.

The present revisional application has been preferred by

one of the accused in Complaint Case No.20404 of 2013

(corresponding to CS/0323539/2014) presently pending before the

learned Metropolitan Magistrate, 15th Court, Calcutta.

The main thrust of the contention of the petitioner is that

the paragraph 2 of the petition of complaint is the only foundation

for implicating the petitioner as an accused in the present case. The

said allegation/averment made in paragraph 2 is bereft of the

detailed requirements regarding compliance of Section 141 of the

Negotiable Instruments Act for holding a person being vicariously

liable in alleged commission of offence under Section 138 of the

Negotiable Instruments Act.

Learned advocate for the petitioner has relied upon a

decision in the case of S.M.S. Pharmaceuticals Ltd. Vs. Neeta

Bhalla & Anr. reported in AIR 2005 SCC 3512.

On the other hand, Mr. Ghatak, learned advocate

appearing for the complainant/opposite party has relied upon the

judgments of the Hon'ble Supreme Court in K.K. Ahuja Vs. V.K.

Vora & Anr. reported in (2009) 10 SCC 48 and A.K. Singhania Vs.

Gujarat State Fertilizer Company Limited & Anr. reported in

(2013) 16 SCC 630.

The purpose of all these judgments which have been

delivered by the Hon'ble Supreme Court was innocent persons or

person who are not involved are unnecessarily not asked to take a

criminal trial by invoking the provisions of Section 141 of the

Negotiable Instruments Act.

All the judgments referred to are on the issues of Section

141 of the Negotiable Instruments Act but there are thread line

difference in all these judgments regarding the allegation or

averment required for implicating a person or holding them

vicariously responsible for facing the trial in a proceeding under

Section 138 of the Negotiable Instruments Act. Primarily, I am of

the view that there is a requirement for at least stating that person

who is responsible or in-charge for the day-to-day conduct of the

business of the company was also holding his office at the relevant

point of time when the offence was committed. The part of the

averment whether the person was holding the office at the time of

commission of the offence is missing in paragraph 2 of the petition

of complaint. However, a complaint can also be amended and the

very purpose of a criminal court is to ascertain or unearth the truth.

In view of the aforesaid, I am of the opinion that let an

enquiry be conducted under Section 202 of the Code of Criminal

Procedure to ascertain as to whether the present petitioner before

this Court, namely, Suresh Kumar Somani, was a Director of the

company at the time when the offence was committed, that is after

the period of 15 days on receipt of the statutory notice.

Let such enquiry in terms of Section 202 of the Code of

Criminal Procedure be conducted by the authorities referred to in

such Section under the direction of the learned Metropolitan

Magistrate, 15th Court, Calcutta. It would be at the discretion of the

said authority to call for a document either only from the

complainant or if required from the accused.

Let the whole process of Section 202 Criminal Procedure

Code be completed within a period of 60 days from the next date so

fixed by the learned Metropolitan Magistrate, 15th Court, Calcutta.

Thereafter, the learned Magistrate would take a decision whether

the provisions of Section 204 of the Code of Criminal Procedure are

to be invoked so far as the present petitioner is concerned.

With the aforesaid directions, CRR 1762 of 2018 is

disposed of.

Pending application, if any, is consequently disposed of.

Interim order, if any, is hereby vacated.

All parties shall act on the server copy of this order duly

downloaded from the official website of this Court.

(Tirthankar Ghosh, J.)