SHEETAL AMIT PATIL Vs. STATE OF WEST BENGAL

JUDGEMENT

(1.) This is an application praying for quashing of a proceeding in a complaint case being Case No. CC-3444 of 2016 under Section 138 read with Section 141 of the Negotiable Instruments Act presently pending before the learned Judicial Magistrate, 4th Court, Alipore, South 24 Parganas.

(2.) The petitioner nos. 1 and 2 are the accused nos. 8 and 9, respectively before the learned Trial Court while the opposite party is the complainant in this case. On 19.08.2016 the opposite party filed a petition of complaint against the petitioners and other co-accused including the partnership firm in which the present petitioners were also partners. On 09.09.2016, process was issued against the present petitioners and the other co-accused.

(3.) Learned counsel appearing on behalf of the petitioners submitted as follows. First, the petitioners were neither signatories to the cheque nor parties to the agreements in question. Secondly, there were incomplete averments in the petition of complaint so far as the roles of the present petitioners were concerned. In the petition of complaint it was merely averred that all the accused were the partners at the accused partnership firm looking after its day to day business affairs and responsible for each and every business conduct at the relevant time when the offence was committed. However, this fell sort of the specific averments about the role of the accused that had to be made in a petition of complaint as per the ratio of the Hon'ble Apex Court as laid down in S.M.S. Pharmaceuticals Limited vs. Neeta Bhalla and Anr., (2005) 8 SCC 89. Merely being a partner in a firm would not make the petitioners accused in this case. On this, reliance was further placed on the decisions of the Hon'ble Apex Court in National Small Industries Corporation Limited vs. Harmeet Singh Paintal and Anr., (2010) 3 SCC 330, Pooja Ravindra Devidasani vs. State of Maharashtra, (2014) 16 SCC 1 and Saroj Kumar Poddar vs. State (NCT of Delhi) and Anr., 2007 Cr.L.J. 1419. On this point, reliance was also placed on the decisions of the Hon'ble Delhi High Court in Shivam Minerals Limited vs. State, AIR Online 2019 DEL 1257, Shyam Narayan Mishra and Ors. vs. State, 2014 (1) ADR 750, the Hon'ble Calcutta High Court in Srabonti Ganguli vs. IDBI, 2014 ACD 629 (Cal), the Hon'ble Chhattisgarh High Court in Gita Singh and Ors. vs. Jaiprakash, CDJ 2019 CH 8C100, the Hon'ble Jharkhand High Court in Puranmal Agarwal and Ors. vs. State of Jharkhand and Anr. in CRMP No. 804 of 2012, the Hon'ble Gujarat High Court in Anil Kumar vs. Abhisekh Enterprise and Anr., 2018 ACD 121 (Guj) and the Hon'ble Kerala High Court in P. Rajagopalan vs. P.C. Jose and Anr., 2017 ACD 59 (KER). Lastly, it was contended that there was complete non-compliance of Section 202 of the Code inasmuch as no enquiry was undertaken despite the fact that the accused petitioners were admittedly staying beyond the territorial jurisdiction of the learned Trial Court. The learned Trial Court only examined the complainant under Section 200 of the Code and did not direct an enquiry as contemplated under the amended provision of Section 202 of the Code. The enquiry as contemplated under Section 202 of the Code was mandatory. On this, reliance was placed on the decisions of the Hon'ble Apex Court in the cases of K.T. Joseph vs. State of Kerala and Anr, (2009) 15 SCC 199, National Bank of Oman vs. Barakara Abdul Aziz and Anr, (2013) 2 SCC 488, Abhijit Pawar vs. Hemant Madhukar Nimbalkar, AIR 2017 SC 267 and Birla Corporation Limited vs. Adventz Investments and Holdings Limited, 2019 SCC On-Line SC 682. It was contended that Section 202 was not only mandatory in respect of Penal Code offences, but also in respect of offences under Section 138 of the Negotiable Instruments Act. Disputing the ratio laid down by the Division Bench of the Hon'ble High Court at Calcutta in S.S. Binu vs. State of West Bengal, 2018 SCC On-Line (Cal) 1741, it was contended that the affidavit of evidence, as contemplated under Section 145 of the Negotiable Instruments Act could not be a surrogate for an enquiry under Section 202 of the Code. Reliance was further placed on the decision of the Hon'ble Bombay High Court in Parth Bhadresh Mehta vs. State of Maharashtra, 2019 SCC OnLine Bom 405, the Hon'ble Calcutta High Court in Anu Mehta vs. Gunmala Sales Private Limited, 2013 ACD 1113 (Cal), the Hon'ble Karnataka High Court in Babu Rao Chinchasur vs. Anjana Shathaveer in Criminal Petition No. 7269 of 2015 and of the Hon'ble Gujarat High Court in Vir Retail Pvt. Ltd. vs. State of Gujarat and Anr., 2014 ACD 537 (GUJ). In view of these, the impugned proceeding ought to be quashed so far as the present petitioners were concerned.