N K AGARWAL Vs. STATE

JUDGEMENT

(1.) THE petitioner, N.K. Agarwal (accused No. 3 in Complaint Case No. C-2249/96) has taken out this application praying for quashing of the proceeding in C-2249/96 pending in the Court of learned Judicial Magistrate, 8th Court, Alipore, 24-Parganas (South), on the ground that in view of Section 141(1) of the Negotiable Instruments Act, 1881 (as Amended by Act 55 of 2002), he is not vicariously liable for the act of the principal offender, i.e., the company for commission of an offence under Section 138 of the Negotiable Instruments Act (hereinafter referred to as "the said Act").

(2.) THE opposite party, Biswanath Mukherjee, Secretary of Golden Securities Limited, lodged one petition of complaint in the year 1996 in the Court of learned Judicial Magistrate, 8th Court, Alipore, 24-Parganas (South), under Section 138 of the said Act alleging therein that Prakash Industries Limited, accused No.1, was under obligation to pay rental dues. THE accused No. 2, V. P. Agarwal, being the Managing Director of the company, drawn a cheque on behalf of M/s. Prakash Industries Limited for Rs.3,91,585/- towards payment of third instalment. That cheque was presented for encashment in the United Bank of India, Calcutta Stock Exchange Branch, Calcutta by the complainant Biswanath Mukherjee. THE said cheque was returned dishonoured due to insufficient fund. THE complainant Biswanath Mukherjee issued demand notice dated 14.11.1996 through his Advocate for payment of the dishonoured cheque amount upon all the accused persons, which was received by all of them on 01.12.1996. As the accused No. 1, being the company, accused No. 2 being the drawer of the cheque and other accused persons were the persons in control, management and responsible for the conduct of the business of the accused No. 1 company, were sought to be prosecuted under Section 138 of the said Act. After recording initial deposition of the complainant Bikash Chatterjee and upon consideration of the petition of complaint, the learned Magistrate directed issuance of process upon all the accused person including the petitioner herein (accused No. 3). THE petitioner has come up with this application praying for quashing of the proceeding on the sole ground that he is not vicariously liable for the act allegedly committed by the accused No. 1 company and the accused No. 2, the Managing Director of the accused No. 1 company. It is his claim that he was the Deputy General Manager (Finance) of the company, as shown in the petition of complaint, although there existed no such post in the accused No.1 company. THE cheque in question was not issued in connivance with and in consultation with him by the accused No.2.

(3.) MR. R.P. Matilal, learned Advocate appearing on behalf of the opposite parties, contends that the petition of complaint filed by the opposite party in the Court of learned Magistrate contains clear averment which satisfied the requirement of Section 141 of the said Act. It has been mentioned clearly therein that the accused No. 2 is the drawer of the cheque and the accused Nos.3, 4 and 5 are the persons in control, management and responsible for the conduct of the business of the accused company and that, they were served with demand notice which they received on 1.12.1996 but, failed to make payment. These averments altogether is sufficient enough to meet the requirements of Section 141 of the said Act at least for the purpose of issuing process under Section 204 of the Code of Criminal Procedure. MR. Matilal contends further that whether the petitioner had knowledge or not in the matter of issuing the cheque in question or whether it was issued in connivance with him or not and that whether or not he was in control, management and responsible for the conduct of the business of the accused company is a question of fact supposed to be decided by the learned Trial Court at the time of trial. In support of his contention, MR. Matilal refers to the following decisions:-