Kamal Sarma vs K.D.C. Bonded Warehouse Pvt. Ltd
2025 Latest Caselaw 4208 Gua

Gauhati High Court

Kamal Sarma vs K.D.C. Bonded Warehouse Pvt. Ltd on 19 March, 2025

                                                                      Page No.# 1/19

GAHC010269682018




                              THE GAUHATI HIGH COURT
   (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)

                               Case No. : Crl.Pet./1234/2018

            KAMAL SARMA
            S/O LATE SUTIMAN SARMA
            R/O BHUMORAGURI
            P.O. JAGIROAD,
            DIST. MORIGAON, ASSAM
            PIN - 782410.



            VERSUS

            K.D.C. BONDED WAREHOUSE PVT. LTD.
            REP. BY ITS MANAGER, SRI SUKUMAR CHAKRABORTY,
            HAVING ITS OFFICE AT K.C.C. ROAD,
            CHATRIBARI
            MAHENDRA SINGH BUILDING GROUND FLOOR, P.S. PALTAN BAZAR,
            GUWAHATI, DIST KAMRUP (M), ASSAM, PIN - 781008.



Advocate for the Petitioner   : MR. B K DAS, MR H P GUWALA

Advocate for the Respondent : MR. K K DEKA, MR A SARMA,MR. D K KOTHARI,MR. B
DEKA,MS P BARUAH,MR. A D CHOUDHURY,MR. P K SARMA

                   Date of Hearing & Judgment: 19.03.2025
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                                 BEFORE
                 HONOURABLE MR. JUSTICE KAUSHIK GOSWAMI

                           JUDGMENT & ORDER (ORAL)

Heard Mr. B.K. Das, learned counsel for the petitioner. Also heard Mr. D.K. Kothari, learned counsel for the respondent.

2. By way of this petition under Section 482 of the Cr.PC, 1973, the petitioner is seeking quashing of the proceedings in C.R. Case No. 1220/2017 under Section 138 of the Negotiable Instruments Act, 1881, (hereinafter referred to as

the "N.I. Act") pending before the learned Judicial Magistrate 1 st Class,Kamrup (M) at Guwahati as well as the Order dated 24.04.2017, whereby cognizance was taken against the petitioner as well as the other accused under Section 138 of the N.I. Act, so far the petitioner is concerned.

3. The brief facts of the case is that the respondent filed a complaint case being Complaint Case No. 1220/2017 before the jurisdictional Judicial Magistrate (hereinafter referred to as the 'Magistrate Court') under Section 138 of the N.I. Act against Junbeli Dhaba, Jagiroad, the petitioner and Smt. Seema Sarma alleging inter alia that Smt. Seema Sarma had issued a cheque amounting to Rs. 8,94,787/- (Rupees Eight Lakhs Ninety Four Thousand Seven Hundred Eighty Seven) only towards discharge of liability in favour of the respondent and the said cheque was dishonoured by the Bank for the reasons 'funds insufficient' and therefore, the complaint case was filed.

4. Accordingly, the jurisdictional Police Station was directed to investigate the complaint and after completion of the inquiry and upon the materials being placed before the Magistrate Court, the Magistrate Court was pleased to take Page No.# 3/19

cognizance against Junbeli Dhaba, the petitioner and Smt. Seema Sarma under Section 138 of the N.I. Act. Situated thus, the present quashing petition has been filed by the petitioner.

5. Mr. B.K. Das, learned counsel for the petitioner submits that though the petitioner has been referred as the proprietor of the Junbeli Dhaba, however, he is not the proprietor of the said Dhaba. In fact, it is Smt. Seema Sarma who is the proprietor of the said Dhaba and the signatory to the cheque which was dishonoured.

6. He further submits that the complaint apart from referring the petitioner as the proprietor of the said firm does not contain any averments whatsoever as regards the role played by the petitioner in the alleged offence. He accordingly submits that no cognizance ought to have been taken by the Magistrate Court against the petitioner on the basis of such complaint, which falls short of materials against the petitioner to constitute an offence under Section 138 of the N.I. Act.

7. In support of the aforesaid submission, he relies upon the decisions of the Apex Court in the case of:-

(i) S.M.S. Pharmaceuticals Ltd. Vs. Neeta Bhalla and Another, reported in (2005) 8 SCC 89.

(ii) Harshendra Kumar D. Vs. Rebatilata Koley and Others, reported in (2011) 3 SCC 351.

(iii) National Small Industries Corporation Ltd. Vs. Harmeet Singh Page No.# 4/19

Paintal and Another,reported in (2010) 3 SCC 330.

8. Per contra, Mr. D.K. Kothari, learned counsel for the respondent submits that it is clearly averred in the complaint that the petitioner is the proprietor of the Junbeli Dhaba on behalf of which Smt. Seema Sarma had issued the cheque, which was dishonoured.

9. He accordingly submits that under Section 141 of the N.I. Act, the petitioner is vicariously liable and therefore, the order of the Magistrate Court taking cognizance against the petitioner under Section 138 of the N.I. Act warrants no interference from this Court. He further submits that the case being at the initial stage and is yet to proceed, any interference at this stage would scuttle the criminal investigation at the bud.

10. In support of the aforesaid submission, he relies upon the decisions of the Co-ordinate Bench of this Court in the case of:-

(i) Mirnal Kumar Sarma Son of Late Kandarpa Kumar Sarma Vs. M/S Jain Agencies, reported in 2018 0 Supreme (Gau) 203.

(ii) Nilam Devi Bagaria Vs. Virmal Kr. Todi, reported in 2005 2 GauLR

600.

11. I have given my prudent consideration to the arguments advanced by the learned counsels appearing for the contending parties and have perused the materials available on record. I have also considered the citations submitted at the bar.

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12. Apt to refer to the relevant portion of the complaint, which reads as hereunder:-

"1. That the complainant is a company incorporated under the companies Act, 1956 having its office at K.C.C. Road, Chatribari, Mahendra Singh Building, Ground Floor, Guwahati - 781008, P.S. - Paltan Bazar, District - Kamrup (Metro), Assam and the aforesaid company is a Bonded Warehouse dealing in supply IMFL (Indian Made Foreign Liquor). The accused No. 1 is a business firm under the name and style of JUNBELI DHABA represented by one Mr. Kamal Sarma i.e. accused No. 2 and while the accused No. 3 namely Seema Sarma is one of the authorised signatories of the JUNBELI DHABA. The accused and complainant has a business relationship and during the course of business transaction, the accused has accrued some liability of Rs.8,94,787/- (Rupees Eight Lakhs Ninty Four Thousand Seven Hundred Eighty Seven) only towards the complainant. The instant complaint is preferred by the Attorney Holder-cum-Manager, Sri Sukumar Chakraborty.

Photocopy Power Power Attorney is annexedherewith and marked as ANNEXURE - I.

2. That the accused No. 3, Seema Sarma i.e. authorised signatory of Junbeli Dhaba had issued a cheque vide Cheque No. 000005, dated 09.01.2017 for an amount of Rs.8,94,787/- (Rupees Eight Lakhs Ninty Four Thousand Seven Hundred Eighty Seven) only drawn on the HDFC Bank, Deka Complex, Station. Road, Near DRY Fish Market, P.O. & P.S. - Jagiroad, in the district of Morigaon, Assam for discharging their liabilities which the accused had incurred earlier from the complainant.

Photocopy of the said cheque is annexed herewith and marked as ANNEXURE - II.

5. That after the receipt of the notice dated 23.01.2017 the accused no. 2 namely Mr. Kamal Sarma gave a reply to the aforesaid notice through his advocate vide letter dated 15.02.2017 wherein he denied that he does not have any legal enforceable debt towards the complainant.

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Further in the said letter, it is also denied that he has ever issued any cheque bearing cheque No. 000005 dated 09.01.2017, HDFC Bank, Jagiroad Branch and it is also denied there is no authorised signatory by the name of Ms. Seema Sarma. Further more in the clause 4 of the reply of legal notice it is stated that "............. Ms. Seema Sarma and my client both are separate entities having no business relationship at all witheach other. My client never had any sort of business relationship with Ms. Seema Sarma at any point of time, hence the question of any cause of action arising against my client does not arise at all". Thus the accused No. 2 in his reply to the legal notice sent through his advocate has denied that he has never incurred any liability towards the complainant company.

Photocopy of reply of legal notice is annexed herewith and marked as ANNEXURE - VI.

5.That admittedly the notice dated 23.01.2017 with A/D has been served with the accused and it is apperant that the notice has been duly received by the accused and as such all the criteria of serving of notice under Sectior 138 (b) of the Negotiable Instruments Act, 1881 (as amended) has been completed."

13. In support of the aforesaid complaint, the complainant has filed its evidence on affidavit on 17.03.2017. Relevant paragraphs of the aforesaid evidence reads as hereunder:-

"3. That the accused No. 1 is a business firm under the name and style of JUNBELI DHABA represented by one Mr. Kamal Sarma i.e. accused No. 2 and while the accused No. 3 namely Seema Sarma is one of the authorised signatories of the JUNBELI DHABA. The accused and complainant company has a business relationship and during the course of business transaction, the accused has incurred some liability of Rs.8,94,787/- (Rupees Eight Lakhs Ninty Four Thousand Seven Hundred Eighty Seven) only towards the complainant.

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4. That the accused No. 3, Seema Sarma i.e. authorised signatory of Junbeli Dhaba had issued a cheque vide Cheque No. 000005, dated 09.01.2017 for an amount of Rs.8,94,787/- (Rupees Eight Lakhs Ninty Four Thousand Seven Hundred Eighty Seven) only drawn on the HDFC Bank, Deka Complex, Station Road, Near DRY Fish Market, P.O. & P.S.- Jagiroad, in the district of Morigaon, Assam for discharging their liabilities which the accused had incurred earlier from the complainant company.

EXHIBIT - 2 is the cheque.

EXHIBIT - 2 (1) is the signature of the authorised signatory of the accused No. 1 which I know as her signature.

5. That on receipt of the aforesaid cheque the complainant presented the said cheque to his banker, i.e., Axis Bank Ltd., Paltan Bazar Branch, Guwahat, in the district of Kamrup (Metro), Assam on 10.01.2017 as per the advice of the accused but the said cheque was returned from the banker of the accused, i.e., HDFC Bank, Deka Complex, Station Road, Near DRY Fish Market, P.O. & P.S. Jagiroad, in the district of Morigaon, Assam on 11.01.2017 with dishonoured memo stated the reason "Funds Insufficient".

EXHIBIT - 3 is the dishonour memo dated 11.01.2017.

6. That the complainant issued one notice through our pleader to Proprietor of Junbeli Dhaba i.e. the accused No. 2 namely Mr. Kamas Sarma on 23.01.2017.

EXHIBIT - 4 is the Legal notice dated 23.01.2017.

EXHIBIT - 4 (1) is the postal receipt."

14. Reading of the aforesaid complaint as well as the evidence of the complainant, it is apparent that the alleged case of the complainant is that the Junbeli Dhaba during course of business transaction, incurred some liability of Rs. 8,94,787/- (Rupees Eight Lakhs Ninety Four Thousand Seven Hundred Eighty Seven) only against the complainant. It is further alleged that the Page No.# 8/19

accused No. 3, who is alleged to be the authorized signatory of Junbeli Dhaba had issued a cheque amounting to Rs. 8,94,787/- (Rupees Eight Lakhs Ninety Four Thousand Seven Hundred Eighty Seven) only in favour of the complainant for discharging their said liabilities. It is further alleged that upon presentation of the aforesaid cheque, the same was dishonoured, for which a notice was issued to the petitioner describing him as the proprietor of the said Dhaba.

15. It further appears that in paragraph No. 3 of the evidence on affidavit, the said Dhaba was described as a business firm represented by the petitioner and Smt. Seema Sarma is described as one of the authorized signatories of the said firm.

16. Based on the aforesaid materials, it appears that the Magistrate Court by Order dated 24.04.2017 has taken cognizance under Section 138 of the N.I. Act against the petitioner, the said firm and Smt. Seema Sarma.

17. Apt to refer to Sections 138, 139 & 141 of the N.I. Act, which reads as hereunder:-

"138. Dishonourof cheque for insufficiency, etc., of funds in the account.-

Where any cheque drawn by a person on an account maintained by him with a banker for payment of any amount of money to another person from out of that account for the discharge, in whole or in part, of any debt or other liability, is returned by the bank unpaid, either because of the amount of money standing to the credit of that account is insufficient to honourthe cheque or that it exceeds the amount arranged to be paid from that account by an agreement made with that bank, such person shall be deemed to have committed an offence and shall, without prejudice to any other provisions of this Act, be punished with imprisonment for [a term which may be extended to two years], or with Page No.# 9/19

fine which may extend to twice the amount of the cheque, or with both:

Provided that nothing contained in this section shall apply unless―

(a) the cheque has been presented to the bank within a period of six months from the date on which it is drawn or within the period of its validity, whichever is earlier;

(b) the payee or the holder in due course of the cheque, as the case may be, makes a demand for the payment of the said amount of money by giving a notice in writing, to the drawer of the cheque, [within thirty days] of the receipt of information by him from the bank regarding the return of the cheque as unpaid; and

(c) the drawer of such cheque fails to make the payment of the said amount of money to the payee or, as the case may be, to the holder in due course of the cheque, within fifteen days of the receipt of the said notice.

Explanation.- For the purposes of this section, "debt or other liability"

means a legally enforceable debt or other liability.]

139.Presumption in favour of holder.-It shall be presumed, unless the contrary is proved, that the holder of a cheque received the cheque of the nature referred to in section 138 for the discharge, in whole or in part, of any debt or other liability.]

141. Offences by companies.-(1) If the person committing an offence under section 138 is a company, every person who, at the time the offence was committed, was in charge of, and was responsible to the company for the conduct of the business of the company, as well as the company, shall be deemed to be guilty of the offence and shall be liable to be proceeded against and punished accordingly:

Provided that nothing contained in this sub-section shall render any Page No.# 10/19

person liable to punishment if he proves that the offence was committed without his knowledge, or that he had exercised all due diligence to prevent the commission of such offence:

[Provided further that where a person is nominated as a Director of a company by virtue of his holding any office or employment in the Central Government or State Government or a financial corporation owned or controlled by the Central Government or the State Government, as the case may be, he shall not be liable for prosecution under this Chapter.]

(2) Notwithstanding anything contained in sub-section (1), where any offence under this Act has been committed by a company and it is proved that the offence has been committed with the consent or connivance of, or is attributable to, any neglect on the part of, any director, manager, secretary or other officer of the company, such director, manager, secretary or other officer shall also be deemed to be guilty of that offence and shall be liable to be proceeded against and punished accordingly.

Explanation. For the purposes of this section,-

(a) "company" means any body corporate and includes a firm or other association of individuals; and

(b) "director", in relation to a firm, means a partner in the firm.]"

18. A perusal of the aforesaid provisions, it is apparent that in the event a cheque is dishonoured, proceedings under Section 138 of the N.I. Act can be initiated after the drawer fails to make the payment of the dishonoured money to the payee within (15) fifteen days of the receipt of the demand notice.

19. It appears that under Section 139 of the N.I. Act, it shall be presumed Page No.# 11/19

unless the contrary is proved that the holder of a cheque received the cheque of the nature referred to in Section 138 of the N.I. Act for the discharge of liability.

20. It further appears that under Section 141 of the N.I. Act, in the event the person committing an offence under Section 138 is a company, every person, who at the time, the offence was committed, was in charge of, and was responsible to the company for the conduct of the business of the company as well as the company shall be deemed to be guilty of the offence and shall be liable to be proceeded against.

21. Pertinent that sub-section (2) provides that not-withstanding anything contained in sub-section (1), when the said offence is committed by a company and it is proved that the offence has been committed with the consent or connivance of, or is attributable to, any neglect on the part of, any director, manager, secretary or other officer of the company, such person shall also be deemed to be guilty of that offence and shall be liable to be proceeded against.

22. It appears that the explanation to Section 141 of the N.I. Act clarifies that 'company' means any body corporate and includes a firm or other association of individuals and 'director' in relation to a firm, means a partner in the firm.

23. It appears that in order to attract Section 141 of the N.I. Act, when an offence is alleged to have been committed by the company/firm with the connivance of the director/partner, specific averments attributing the role of such persons is to be made out in the complaint itself. In other words, the complainant should specifically spell out how and in what manner the director/partner was in charge of, or was responsible to the company for Page No.# 12/19

conduct of its business.

24. Reference is made in paragraph No. 39 of the decision of the Apex Court in the case of National Small Industries Corporation Ltd. (supra), which reads as hereunder:-

"39. From the above discussion, the following principles emerge:

(i) The primary responsibility is on the complainant to make specific averments as are required under the law in the complaint so as to make the accused vicariously liable. For fastening the criminal liability, there is no presumption that every Director knows about the transaction.

(ii) Section 141 does not make all the Directors liable for the offence.

The criminal liability can be fastened only on those who, at the time of the Commission of the offence, were in charge of and were responsible for the conduct of the business of the company.

(iii) Vicarious liability can be inferred against a company registered or incorporated under the Companies Act, 1956 only if the requisite statements, which are required to be averred in the complaint/petition, are made so as to make the accused therein vicariously liable for offence committed by the company along with averments in the petition containing that the accused were in charge of and responsible for the business of the company and by virtue of their position they are liable to be proceeded with.

(iv) Vicarious liability on the part of a person must be pleaded and proved and not inferred.

(v) If the accused is a Managing Director or a Joint Managing Director then it is not necessary to make specific averment in the complaint and by virtue of their position they are liable to be proceeded with.

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(vi) If the accused is a Director or an officer of a company who signed the cheques on behalf of the company then also it is not necessary to make specific averment in the complaint.

(vii) The person sought to be made liable should be in charge of and responsible for the conduct of the business of the company at the relevant time. This has to be averred as a fact as there is no deemed liability of a Director in such cases."

25. Reference is also made to paragraph No. 19(c) of the decision of the Apex Court in the case of S.M.S. Pharmaceuticals Ltd. Vs. Neeta Bhalla and Another (supra), which reads as hereunder:-

"19. In view of the above discussion, our answers to the questions posed in the reference are as under:

(c) The answer to Question (c) has to be in the affirmative. The question notes that the managing director or joint managing director would be admittedly in charge of the company and responsible to the company for the conduct of its business. When that is so, holders of such positions in a company become liable under Section 141 of the Act. By virtue of the office they hold as managing director or joint managing director, these persons are in charge of and responsible for the conduct of business of the company. Therefore, they get covered under Section 141. So far as the signatory of a cheque which is dishonoured is concerned, he is clearly responsible for the incriminating act and will be covered under sub-

section (2) of Section 141."

26. Reference is also made to paragraph Nos. 10, 11, 17 & 27 of the decision of the Apex Court in the case of Harshendra Kumar D. (supra), which reads as hereunder:-

"10. The legal position concerning the vicarious liability of a Director in Page No.# 14/19

a company which is being prosecuted for the offence under Section 138 of the NI Act has come up for consideration before this Court on more than one occasion. In S.M.S. Pharmaceuticals Ltd. v. Neeta Bhalla the following questions were referred to a three-Judge Bench for determination: (SCC pp. 93-94, para 1)

"(a) Whether for purposes of Section 141 of the Negotiable Instruments Act, 1881, it is sufficient if the substance of the allegation read as a whole fulfil the requirements of the said section and it is not necessary to specifically state in the complaint that the person accused was in charge of, or responsible for, the conduct of the business of the company.

(b) Whether a Director of a company would be deemed to be in charge of, and responsible to, the company for conduct of the business of the company and, therefore, deemed to be guilty of the offence unless he proves to the contrary.

(c) Even if it is held that specific averments are necessary, whether in the absence of such averments the signatory of the cheque and or the Managing Directors or Joint Managing Director who admittedly would be in charge of the company and responsible to the company for conduct of its business could be proceeded against."

11. The three-Judge Bench of this Court answered the aforesaid questions thus: (S.M.S. Parmaceuticals Ltd. case, SCC p. 103, para 19)

"(a) is necessary to specifically aver in a complaint under Section 141 that at the time the offence was committed, the person accused was in charge of, and responsible for the conduct of business of the company. This averment is an essential requirement of Section 141 and has to be made in a complaint. Without this averment being made in a complaint, the requirements of Section 141 cannot be said to be satisfied.

(b) The answer to the question posed in sub-para (b) has to be in the negative. Merely being a Director of a company is not sufficient Page No.# 15/19

to make the person liable under Section 141 of the Act. A Director in a company cannot be deemed to be in charge of and responsible to the company for the conduct of its business. The requirement of Section 141 is that the person sought to be made liable should be in charge of and responsible for the conduct of the business of the company at the relevant time. This has to be averred as a fact as there is no deemed liability of a Director in such cases.

(c) The answer to Question (c) has to be in the affirmative. The question notes that the Managing Director or Joint Managing Director would be admittedly in charge of the company and responsible to the company for the conduct of its business. When that is so, holders of such positions in a company become liable under Section 141 of the Act. By virtue of the office they hold as Managing Director or Joint Managing Director, these persons are in charge of and responsible for the conduct of business of the company. Therefore, they get covered under Section 141. So far as the signatory of a cheque which is dishonoured is concerned, he is clearly responsible for the incriminating act and will be covered under sub-section (2) of Section 141."

17. In this view of the matter, in our opinion, it must be held that a Director, whose resignation has been accepted by the company and that has been duly notified to the Registrar of Companies, cannot be made accountable and fastened with liability for anything done by the company after the acceptance of his resignation. The words "every person who, at the time the offence was committed", occurring in Section 141(1) of the NI Act are not without significance and these words indicate that criminal liability of a Director must be determined on the date the offence is alleged to have been committed.

27. As noticed above, the appellant resigned from the post of Director on 2-3-2004. The dishonoured cheques were issued by the Company on 30- 4-2004 i.e. much after the appellant had resigned from the post of Director of the Company. The acceptance of the appellant's resignation is duly reflected in the Resolution dated 2-3-2004. Then in the prescribed Page No.# 16/19

form (Form 32), the Company informed to the Registrar of Companies on 4-3-2004 about the appellant's resignation. It is not even the case of the complainants that the dishonoured cheques were issued by the appellant. These facts leave no manner of doubt that on the date the offence was committed by the Company, the appellant was not the Director; he had nothing to do with the affairs of the Company. In this view of the matter, if the criminal complaints are allowed to proceed against the appellant, it would result in gross injustice to the appellant and tantamount to an abuse of process of the court."

27. Perusal of the aforesaid decisions, it is apparent that essential averments indicating the role played by the persons alleged to be in connivance with the accused company in order to fastenvicarious liability on such person, specific averments as are required under the law has to be averred in the complaint. Unless such averments are averred in the complaint, vicarious liability on the part of a person cannot be inferred. Therefore, in order to bring a case under Section 141 of the N.I. Act, the complaint must disclose the necessary facts which makes a pesonvicariously liable. It is necessary to specifically averred in a complaint that at the time the offence was committed, the person accused was in charge of and responsible for the conduct of business of the company. The said averment is an essential requirement of Section 141 of the N.I. Act and has to be made in the complaint and without such averment being made in the complaint, no offence under Section 138 of the N.I. Act can be constituted against such person.

28. In the present case, it appears that the complainant has described the petitioner as proprietor of the accused firm. It further appears that the cheque was issued by Smt. Seema Sarma, who is stated in the complaint to be an authorized signatory in the accused company. It further appears that the Page No.# 17/19

complainant has averred in the complaint that during the course of business with the accused company, there arose a liability of Rs. 8,94,787/- (Rupees Eight Lakhs Ninety Four Thousand Seven Hundred Eighty Seven) only against the complainant. Surprisingly, no averment in the complaint as regards how and in what manner the petitioner was in charge of or was responsible to the accused company for conduct of its business is averred in the complaint. Merely, bald statement that he was the proprietor is not sufficient to draw the presumption under Section 141 of the N.I. Act, inasmuch as, the drawer of the cheque is not the petitioner.

29. It further appears that pursuant to a demand notice issued by the respondent, the petitioner filed its reply on 15.02.2017, wherein the advocate for the petitioner stated that the claim against the petitioner is not correct and the same is made by way of a fabricated and manipulating facts. It is further stated in the said reply that the petitioner does not have any legal enforceable debt towards the complainant and that being so, the question of issuing any cheque in favour of the complainant does not arise.It is further statedin the said reply that no person in the name of Smt. Seema Sarma is an authorized signatory of the petitioner and that the petitioner does not have any business connection with any person named Smt. Seema Sarma and as such, the question of such Smt. Seema Sarma making any business deal on behalf of the petitioner does not arise. It is further stated that the cheque in question was not issued by the petitioner and Smt. Seema Sarma and the petitioner are both separate entities having no business relationship with each other.

30. It appears that the petitioner by filing an additional affidavit on 10.06.2020 has brought a licence issued by the Jagiroad Gaon Panchayat in favour of Smt. Page No.# 18/19

Seema Sarma, wherein she has been described as proprietor of the accused firm.

31. It further appears that in the quashing petition, the petitioner has annexed a licence for the Retail Vend of Foreign Liquor in a Restaurant to be consumed on the premises dated 04.12.2010 in the name of the petitioner.

32. It further appears that the petitioner is having a licence in his name for doing liquor business and is carrying on the said business under the name and style M/S KIR BAR at Pachim Nagaon in the premises of the accused No. 1. It further appears that due to acute health problems of the petitioner, he was unable to run the affairs of M/S KIR BAR and accordingly appointed Kiron Gogoi to manage the functioning of M/S KIR BAR and accordingly entered into an Agreement dated 16.02.2015 with Kiron Gogoi.

33. It appears that the cheque in question was issued by Smt. Seema Sarma showing herself as authorized signatory for the accused firm.

34. It further appears that in the evidence on affidavit filed by the complainant before the Magistrate Court at the stage of filing the complaint, described the accused No. 1 as the business firm represented by the petitioner. However, in the same evidence in paragraph No. 6, the complainant deposed that one notice through his pleader was sent to the proprietor of Junbeli Dhaba, i.e. the petitioner on 23.01.2017.

35. It appears that on the basis of the aforesaid materials collected by the prosecution, the Magistrate Court took cognizance under Section 138 of the N.I. Act against the petitioner as well as the accused firm and Smt. Seema Sarma.

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36. It is apparent that in the present case, except bald statement that the petitioner was the proprietor, there is no averment as to the specific role of the petitioner in the complaint or in the materials collected by the prosecution. It is further apparent that Smt. Seema Sarma is the proprietor of the accused firm and the petitioner is carrying on the liquor business in the premises of the accused firm. Hence, there being no specific averments as regards the role of the petitioner for making him vicariously liable under the law, no inference of guilt against the petitioner under Section 138 of the N.I. Act can be constituted.

37. It appears that despite lack of such specific averments, the Magistrate Court took cognizance against the petitioner under Section 138 of the N.I. Act. Therefore, the Magistrate Court was wholly unjustified in taking cognizance of the same against the petitioner.

38. That being so, the said cognizance under Section 138 of the N.I. Act against the petitioner is patently and manifestly erroneous. Hence, the cognizance taken against the petitioner by Order dated 24.04.2012 by the Magistrate Court stands set aside and quashed, so far the petitioner is concerned.

39. Let the proceedings be continued against the remaining other accused persons in accordance with law.

40. Criminal Petition accordingly stands disposed of.

JUDGE

Comparing Assistant