C.R.R. No.1296 of 2013

22nd November, 2013

Petitioner Counsel: Mr. SANDIPAN GANGULY, Mr. AHIN AUDDY
Respondent Counsel: Mr. SILADITYA SANYAL, Mr. ARINDAM JANA

Cases Cited:
S.M.S. Pharmaceuticals Ltd. Vs. Neeta Bhalla & Anr., 2005(5) ALL MR 1118 (S.C.)=(2005) 8 SCC 89 [Para 6]

JUDGMENT

JUDGMENT :- Proceeding in Case no. 15690 of 2012 corresponding to T. R. No. 1026 of 2012 pending before the learned Metropolitan Magistrate 14th Court, Calcutta under Section 138 of the Negotiable Instruments Act has been assailed.

2. Although the allegations in the petition of complaint disclose the ingredients of the alleged offence, it is submitted that requisite averments for invoking Section 141 of the Negotiable Instruments Act is not disclosed either in the petition of complaint or in the affidavit recorded under Section 145 of the Negotiable Instruments Act. It has also been argued that although the petitioners reside outside the territorial jurisdiction of the Magistrate, mandatory enquiry under Section 202 of the Code of Criminal Procedure prior to issuance of process had not been adhered to.

3. Learned lawyer appearing for the opposite party, however, submitted that the petitioner no. 1 is the signatory of the cheque.

4. I have considered the materials on record. It appears that the averments in the petition of complaint do not conform to the statutory requirement of Section 141 of the Negotiable Instruments Act. Section 141 (1) of the Negotiable Instruments Act inter alia, provides that in the event the accused is a company every person, in addition to the accused company who are in charge and responsible to the company for the day to day affairs at the time of commission of the offence are liable to prosecution.

5. In the instant case apart from a laconic expression that the other accused directors are having control over the affairs of the accused no. 1, there is no averment that they were in charge of and responsible to the accused company for running its day to day affairs at the time of commission of the offence - a sine qua non for prosecution under Section 141 of the Negotiable Instruments Act. Accordingly, the prosecution in respect of the petitioner no. 2 is quashed.

6. However, with regard to the petitioner no. 1 who is the signatory of the cheque in view of the ratio of S.M.S. Pharmaceuticals Ltd. vs. Neeta Bhalla & Anr. (2005) 8 SCC 89 : [2005(5) ALL MR 1118 (S.C.)] the prosecution ought to continue.

7. With regard to the issue of non-compliance of Section 202 of the Code of Criminal Procedure, in view of the nature of accusation and the deposition of the complainant under Section 145 of the Negotiable Instruments Act, I am of the view that non-compliance thereof has not occasioned any failure of justice and cause prejudice to the petitioners. Hence, in the light of Section 465 of the Code of Criminal Procedure, I am of the view that the departure from such provision though mandatory, would not vitiate the impugned proceeding.

8. The revisional application is allowed in part. Proceedings are quashed so far as the petitioner no. 2 is concerned. However, the proceeding shall continue against the petitioner no. 1.

9. The Trial Court is directed to conclude the proceeding at an early date following the amended Section 143 (3) of the Negotiable Instruments Act.

10. Photostat certified copy of this order, if applied for, be given to the appearing parties as expeditiously as possible.

Ordered accordingly.