Mannalal Chamaria and another vs Kiran Chandra Biswas

Ranjit Kumar Bag, J. - The petitioners have preferred this revision under Section 401 read with Section 482 of the Code of Criminal Procedure praying for quashing the proceeding of Case no. C-3385 of 2000 under Section 138 of the Negotiable Instruments Act, 1881 pending before the court of learned Judicial Magistrate, 3rd Court, Alipore, South 24 Parganas.

It appears from record that the sister-in-law of the opposite party filed one petition of complaint against M/s. Heritage Herbs Limited and one director of the said company on the allegation that the opposite party deposited Rs.10,000/- with M/s. Heritage Herbs Limited (hereinafter referred to as "the said company") in the month of May, 1999 for allotment of land. It is further alleged that the said company issued one cheque bearing no.019227 dated June 3, 2000 for an amount of Rs.12,200/- drawn on HDFC Bank in favour of the opposite party in lieu of allotment of land. It is also alleged that the said cheque of Rs.12,200/- was dishonoured by the United Bank of India, Katagunge G.G. Colony Branch when the same was placed in the bank for encashment. The fact of dishonour of the cheque was duly communicated by the United Bank of India to the opposite party on October 16, 2000. The opposite party served the legal notice on October 30, 2000 and, ultimately, filed a petition of complaint against the said company and its director for commission of the offence punishable under Section 138 read with Section 141 of the Negotiable Instruments Act.

One Raj Kumar Chamaria, the Managing Director of the said company, died during the pendency of the proceeding before the trial court. The opposite party, being the complainant of the said criminal case, filed an application before the trial court praying for substituting the name of the present petitioner in place of the deceased, Raj Kumar Chamaria, as the Managing Director of the said company. On September 28, 2004 learned Magistrate of the court below allowed the prayer of the opposite party and issued process against the petitioners to face the trial for the offence under Sections 138/141 of the Negotiable Instruments Act. The petitioners have challenged the entire proceeding on the ground that the opposite party did not disclose the role of the petitioners in managing the affairs of the said company and issuing the cheque which was dishonoured and for which the criminal proceeding was instituted by the opposite party.

With the above factual matrix, Mr. Joy Sengupta, learned counsel for the petitioners contends that there is no specific allegation against the petitioners in the petition of complaint filed by the opposite party before the trial court. Mr. Sengupta further submits that in the absence of any averments in the petition of complaint with regard to the role played by the petitioners in managing the affairs of the company and day-to-day business of the company and issuing the cheque which was dishonoured, the petitioners are not liable to be prosecuted for the offence under Sections 138/141 of the Negotiable Instruments Act. Mr. Sengupta has relied on the decision of the Supreme Court in "Mannalal Chamaria and another v. State of West Bengal and another" reported in (2014) 2 C. Cr. L.R. (SC) 316 in support of his above contention.

None appears on behalf of the opposite party in spite of service of notice and copy of the application on the opposite party as reflected from the affidavit-of-service filed by the petitioners. On perusal of the petition of complaint filed by the opposite party before the court of learned Magistrate, I find that there is no averment against the petitioners in the said petition of complaint, as the petitioners were substituted in place of one Raj Kumar Chamaria, the Managing Director of the said company. There is nothing on record to indicate that the opposite party has filed any amended petition of complaint before the trial court disclosing averments that the petitioners had role in issuance of the cheque in question and that he was in charge of and responsible for the conduct of business of the said company. In this regard, it is relevant to quote paragraph 9 of "Mannalal Chamaria and another v. State of West Bengal and another" reported in (2014) 2 C Cr.L.R. (SC) 316, which is as follows:

"9. The law on the subject is now very well-settled by a series of decisions rendered by this Court and it is not necessary to repeat the views expressed time and again. Suffice it to say, that the law has once against been stated in A.K. Singhania v. Gujarat State Fertilizer Company Ltd, AIR 2014 SC 71 to the effect that it is necessary for a complainant to state in the complaint that the person accused was in charge of and responsible for the conduct of the business of the company. Although, no particular form for making such an allegation is prescribed, and it may not be necessary to reproduce the language of Section 138 of the Negotiable Instruments Act, 1881, but a reading of the complaint should show that the substance of the accusation discloses that the accused person was in charge of and responsible for the conduct of the business of the company at the relevant time. From the averment made in the complaint, which is reproduced above, it can safely be said that there is no specific or even a general allegation made against the appellants."

By making the above observation, the Supreme Court quashed the proceeding under Sections 138/141 of the Negotiable Instruments Act against the appellants. In the instant case, I have already observed that on perusal of the petition of complaint, it is crystal clear that the opposite party has not made any averment to the effect that the petitioners were in charge of and responsible for conduct of the business of the said company at the relevant point of time when the cheque was issued in favour of the opposite party. By applying the proposition of law laid down by the Supreme Court in " Mannalal Chamaria and another v. State of West Bengal and another" (supra) I am constrained to hold that the proceeding under Sections 138/141 of the Negotiable Instruments Act initiated by the opposite party cannot continue against the petitioners.

In view of my above findings, the complaint Case no.C-3385 of 2000 pending before the court of learned Judicial Magistrate, 3rd Court, Alipore, is quashed so far as the petitioners are concerned. However, the complaint in connection with Case no.C-3385 of 2000 pending before the court of learned Magistrate will continue against M/s. Heritage Herbs Limited and other directors of the said company, who are impleaded as accused persons in the petition of complaint.

With the above observation, criminal revision is disposed of.

The department is directed to send down a copy of this order to the learned court below for favour of information and necessary action.