LAV JHINGAN Vs. STATE OF WEST BENGAL

JUDGEMENT

(1.) SINCE some common issues are involved in all these revisional applications the same are taken up together for consideration and disposal by a composite order.

(2.) IN all these revisional applications the petitioner has claimed that he was one of the six Directors of M/s. Caritt Moran and Co. Pvt. Ltd. and retired from the post of Director of the company on 12.03.2009 and was not in-charge of day to day affairs of the accused company. Yet he has been falsely implicated in the proceedings being case Nos. C/5687/2009, C/5688/2009, C/5689/2009 and C/5690/2009 respectively under Sections 138/141 of the Negotiable Instruments Act now pending be fore the learned Metropolitan Magistrate, 13th Court, Calcutta. In all these cases the cheques issued by the company on different dates were dishonoured on the grounds of "ACCOUNT CLOSED". In fact as the petitioner was in no way connected with the day to day affairs and management of the company at the time of issuing those cheques he was not liable in any way for prosecution as alleged in the petition of complaint on the basis of which the learned Chief Metropolitan Magistrate took cognizance of the offence and transferred the case to the learned Transferee Magistrate for disposal of the same. It is further submitted on behalf of the petitioner that in the petitions of complaint in respect of the aforesaid four cases there is no specific mention of the individual role of the petitioner in the alleged dishonour of the cheques and therefore, he is not vicariously liable for the misdeeds of the company. The company being accused No. 1 may be prosecuted for the alleged offence and the proceeding against the petitioner in respect of all these cases may be quashed. The learned law yer for the petitioner has referred to and relied upon the principles laid down in S. M. S. Pharmaceuticals Ltd. v. Neeta Bhalla & Ann, reported in 2005 (8) SCC 89 : (AIR 2005 SC 3512) Sabitha Ramamurthy v. RBS Channabasavaradhya, reported in 2006 (10) SCC 581 : (AIR 2006 SC 3086) and Saroj Kumar Poddar v. State (NCT of Delhi), re ported in 2007 (3) SCC 693 : (AIR 2007 SC 912), in support of his contention. Learned lawyer for the State on the contrary has contended that since charge-sheet has already been submitted in all those cases the revisional Court cannot look into the merit of the allega tions and form opinion of its own pending trial of the cases. In fact, there is no merit in these applications which should be dismissed. He has referred to and relied upon the principles laid down in U. P. Pollution Control Board v. Dr. Bhupendra Kumar Modi & Anr., reported in 2009(1) Crimes 216 (SC): (2009 AIR SCW 672). It has been held therein that once the Magistrate takes cognizance, it is not for the superior Courts to substitute its own discre tion for that of the Magistrate or to examine their case on merits with a view to find out whether or not the allegations in the complaint, if proved, would ultimately end in conviction of the accused. He has also referred to the ratio of the case of Rajesh Bajaj v. State NCT of Delhi & Ors., reported in 1999 Cri LJ 1833 : (AIR 1999 SC 1216) in which it has been held, inter alia, by the Hon'ble Apex Court that complaint need not require to reproduce verbatim all ingredients of offence alleged in the body of the complaint. Quashing of FIR is not proper if averments in complaint prima facie makes out case for investigation.

(3.) IT is claimed that the petitioner in all these cases resigned from the post of Director of the company on 12th March, 2009, but the four cheques in the above cases were issued on 07.07.2008 and dishonoured on 05.01.2009, i.e., while he was acting as Director of the company. Therefore, if the petition of complaint discloses any fact constituting offence under Section 138/141 of the Negotiable Instruments Act, trial may proceed against him since cognizance has already been taken. The contents of the complaint disclosing allegations against the present petitioner, Director is almost identical in all the four petitions of complaint. For the purpose of Con- sidering merit of such complaint relevant portion of the complaint being C/5688/2009 by way of illustration is quoted below by way of illustration: v,