Mithu Biswas And Others vs Khandelwal Jutex (P) Ltd. And ...
2023 Latest Caselaw 2701 Cal

Form J(1)         IN THE HIGH COURT AT CALCUTTA
                     Criminal Revisional Jurisdiction
                              Appellate Side


Present :
The Hon'ble Justice Bibek Chaudhuri


                           CRR 4318 of 2022


                          Mithu Biswas and Others
                                  Vs.
                       Khandelwal Jutex (P) Ltd. and others




Mr. Q.A.M. Firoz
Mr. Arun Shaw
           ..for the petitioner


Item No.11

Heard & Judgment on:          19.04.2023


Bibek Chaudhuri, J.

The petitioners have approached this Court praying for

quashing of a complaint under Section 138 read with Section 141 of

the Negotiable Instruments Act being C.S. No. 31654 of 2019 pending

before the learned Metropolitan Magistrate, 14 th Court, Calcutta on

two fold grounds.

      (i)      No notice was served upon the petitioners.

      (ii)     The petitioners are not the Executive Directors of the

               Company. They are non-executive Directors.

It is found from the impugned order that the learned Magistrate

rejected the application filed on behalf of the petitioners in view of the

decisions of the Hon'ble Supreme Court in the case of Adalat Prasad.

Learned Magistrate did not consider as to whether notice was

served upon the petitioners or not. The learned Magistrate has also

failed to consider the subsequent decisions of the Hon'ble Supreme

Court where it has been stated that non-executive members of a

company who do not have any control over the day to day affairs of

business cannot be prosecuted under Section 138 of the Negotiable

Instruments Act.

For such purpose I do not think it proper to admit the instant

revision for quashing. The petitioners are at liberty to agitate this

point at the time of examination of the accused persons under Section

251 of the Code of Criminal Procedure. The learned Magistrate shall

consider the allegations as to whether notice was served upon the

petitioners which is the principal condition of filing complaint under

Section 138 of the N.I. Act and secondly, whether the petitioners were

engaged in any way in the business affairs of the company and they

discharge the same day to day function of the company and for their

acts they are liable to the company.

With the above direction, the instant revision is disposed of.

(Bibek Chaudhuri, J.)