Deepa Singh - Petitioner @HASH Ratna Lal and Another

Sankar Acharyya, J. - Since all these four revisional applications have been filed by the same petitioner with common issue arises out of four separate orders dated 07.11.2013 passed by learned Metropolitan Magistrate, 17th Court at Calcutta in four cases, i) C/24521 of 2012, ii) C/24522 of 2012, iii) C/24523 of 2012 and iv) C/24524 of 2012. All these four revisional applications have been heard on submission of learned counsels for the parties and taken up together for consideration and disposal by a composite judgment. All the said cases in the Court below have been filed under Sections 138/141 of the Negotiable Instruments Act, 1881. In all those cases present petitioner has been made accused no. 7 as a director of M/S Arvind International Limited. Aforesaid C/24521 of 2012 has been filed by Mr. Ratan Lal as complainant alleging dishonour of a cheque for Rs.5 lakh; C/24522 of 2012 has been filed by M/S Ratna Kamal Holdings Private Limited alleging dishonour of a cheque for Rs.9 lakh; C/24523 of 2012 has been filed by Smt. Anita Agarwal alleging dishonour of a cheque for Rs.6 lakh; and C/24524 of 2012 has been filed by M/S Jain Vincom Private Limited alleging dishonour of a cheque for Rs.5 lakh. In all those cases cheques were allegedly issued by M/S Arvind International Limited. Copies of complaints of those cases have been annexed to the revisional applications under Section 401 read with Section 482 of the Code of Criminal Procedure, 1973 (in short Cr.P.C.). Present petitioner as accused no. 7 in all those cases filed separate petitions on 12.06.2013 praying for her discharge from the cases on the ground that she was neither a director nor an executive of accused company M/S Arvind International Limited. At the relevant point of time learned Metropolitan Magistrate, 17th Court at Calcutta passed the impugned orders dated 07.11.2013 with observation that "....if the parties are in dispute over a question of fact, the same cannot be decided without going into trial. It shall be the duty of the complainant to prove by adducing cogent evidence that accused no. 7 was responsible for day to day affairs of the accused company at the relevant point of time, during trial. In view of the aforesaid reasons, the instant petition filed by accused no. 7 is rejected on contest, without cost". In these revisional applications petitioner has prayed for quashing and setting aside the aforesaid orders dated 07.11.2013 passed by the learned Metropolitan Magistrate in the cases mentioned above and for discharge of the petitioner from those cases wherein she has been made accused no. 7.

At the time of hearing learned counsel for the petitioner argued that the petitioner was never a director of M/S Arvind International Limited he has claimed that the petitioner joined the company as secretary on 16.10.2012 which is long after issue of the impugned cheques. Therefore, the proceeding against the petitioner does not lie. He further submitted that the petitioner may be discharged from the said four cases pending before the learned Metropolitan Magistrate. Learned counsel advanced his arguments that at the time of issue of alleged dishonour of cheques the petitioner was not a director of the accused company and she was not responsible in any manner for the conduct of business of the accused company and she was not in charge of the business of the accused company at the relevant time. It is further argued by the learned counsel for the petitioner that although the petitioner was alleged as responsible in the petition of complaint relating to the issue of dishonoured cheque but admittedly no demand notice was served on her and from that angle also the case against her is liable to be quashed. In support of his arguments he relied upon the decisions of the Hon''ble Supreme Court in the cases of S.M.S. Pharmaceuticals Limited v. Neeta Bhalla and Another reported in 2005 Cri.L.J. 4140, A.K. Singhania v. Gujarat State Fertilizer Co. Ltd. and Another reported in 2013 (4)Crimes 421, S.W. Palanitkar and Ors v. State of Bihar and Another reported in 2001 (4) Suppl. SCR 397 and National Small Industries Corporation Limited v. Harmeet Singh Paintal and Another reported in 2010 Cri.LJ 1907. He also cited a decision of Bombay High Court in the case of Chaitan M. Maniar v. State of Maharashtra and Another reported in 2004 Cri.L.J. 2343 and two decisions of this High Court in the cases of Srabonti Ganguli v. Industrial Development Bank of India reported in (2014) 1 C Cr.L.R. (Cal) 887 and the case of Lav Jhingan v. State of West Bengal reported in 2012 (5) CHN (Cal) 140.

On the other hand, learned counsel appearing for the complainant opposite party submitted that in the court below the petitioner prayed for her discharge in a summons case which is not permissible in the Code of Criminal Procedure. Rejection of her said prayer in the court below is proper and that order cannot be challenged here in this revisional application. He relied upon the principles of law discussed in two decisions of the Hon''ble Supreme Court in the cases of Adalat Prasad v. Rooplal Jindal and Others reported in 2004 (6) Supreme 371 and Subramanium Sethuraman v. State of Maharashtra and Another reported in (2005) 1 C Cr. L.R. (SC) 256.

Having gone through the copy of complaints lodged by the complainants (opposite parties herein) in the cases pending before the learned Metropolitan Magistrate it appears that the present petitioner has been made accused as one of the directors of accused no. 1 company M/S Arvind International Limited. As per averments of the complaints this petitioner was also a person in charge responsible for and looking after the day to day business affairs of that company at the relevant time when the offence of issuing the cheques in question was committed. Specific allegations of the complaints are that the accused no. 1 company is being managed and controlled by the accused no. 2 to 8 (including this petitioner as accused no. 7). Further averment of the complaints is that said accused persons approached the complainant (opposite party no. 1 herein) and represented that they are in need of funds and as such, requested the complainant to discount their bill and as per said request the complainant discounted their bill and made payment to the party on behalf of accused persons. As such, prima facie, from the face value of the complaints I find specific averments that this petitioner was also responsible for the conduct of business of the accused company M/S Arvind International Limited. Whether such averment is true or otherwise is a matter of recording evidence in trial. At this stage it appears to me clear that there is unambiguous allegation that the present petitioner was also in charge of and responsible for the conduct and affairs of the accused no. 1 company. Following the principles discussed in the decisions of the Hon''ble Apex Court reported in 2010 Cri.L.J. 1907 (Supra), 2013 (4) Crimes 421 (SC) (Supra) and 2005 Cri.L.J. 4140 (Supra) I am of the opinion that on the basis of averments made in the complaints in the pending cases before the learned Metropolitan Magistrate there is sufficient ground to proceed against the accused persons of those cases. The decision of the Hon''ble Supreme Court reported in 2001 (4) Suppl. SCC 397 does not fortify the petitioner of this revisional application as the ratio of that decision is not applicable in this case relating to the facts alleged. In view of my findings made above the decisions of this High Court reported in 2012 (5) CHN (Cal) 180 and (2014) 1 C Cr.LR (Cal) 887 also do not improve the case of the petitioner. On the question of necessity of service of notice upon the directors of accused company I am not agree with the learned advocate for the petitioner. On this point I am fortified by a judgment of the Hon''ble Supreme Court in the case of Kirshna Texport and Capital Markets Limited v. Ila A. Agarwal and Others reported in (2015) 8 SCC 28 to say that the directors of accused company who are in charge of and responsible for affairs of the company are not required to be served statutory notice individually under Section 138 of the N.I. Act. Therefore, the judgment reported in 2004 Cri. LJ 2343 cannot be followed in this Court. Be it noted that in paragraph 6 of the complaint there is specific averment of service of demand notice on the accused company which is sufficient to proceed with the case at preliminary stage. In the impugned order I find no illegality in the observation of the learned Court below to the effect that the dispute over a question of fact cannot be decided without going into trial. In my opinion, the contentions of the present petitioner raised herein may be raised in trial before the learned Magistrate for adjudication as to whether on the date of alleged cause of action the petitioner was attached to the accused company and at all was in charge of and responsible to the conduct of the business of the accused company which are matters of fact for adjudication in trial.

In summing up my discussions made above I find and hold that the impugned orders dated 07.11.2013 passed by learned Metropolitan Magistrate, 17th Court, Calcutta need no interference in these revisional applications and all these four revisional applications are liable to be dismissed.

Accordingly, the revisional applications being No. CRR 232 of 2014, CRR 233 of 2014, CRR 234 of 2014 and CRR 235 of 2014 are hereby dismissed on contest but without any order as to costs.

Interim order, if any, stands vacated.

Urgent Photostat certified copy of this judgment be given to the parties or their advocates on record promptly observing requisite legal formalities.