JAWAID ALAM Vs. STATE OF WEST BENGAL

JUDGEMENT

(1.) The instant revisional application is filed under Sec. 482 of the Criminal Procedure Code to quash the proceedings of case no. C-21183/2011 under Ss. 138/141 of the Negotiable Instruments Act, 1881 pending before the Ld. Metropolitan Magistrate, 4th Court, Calcutta directed against order dtd. 20/8/2011 and 8/9/2011. The petitioner inter alia contends that the opposite party no. 2 filed a complaint in the Court of Ld. Chief Metropolitan Magistrate at Calcutta being case no. C-21183/2011 under Sec. 138/141 of the Negotiable Instruments Act, 1881 on or about 20/8/2011 against one M/s Prime Impex Ltd., a company along with 4 other persons including the present petitioner as accused number 4 praying for issuance of process against them based on that aforesaid complaint. The Ld. Metropolitan Magistrate vide order dtd. 20/8/2011 took cognizance of the case and transferred the same to the Court of Ld. Metropolitan Magistrate on 8/9/2011 process was issued on the basis of presummoning evidence of the Opposite Party no. 2 herein. The petitioner herein entered appearance and his prayer under Sec. 205 of the Cr.P.C. was granted. The petitioner along with the other co accused persons filed an application to drop the proceedings based on the grounds thereof on the date fixed for examination of the accused persons under Sec. 251 of the Cr.P.C. and the said application was not entertained vide order dtd. 13/3/2013. Against the order of 13/3/2013 an application under Sec. 397/399 of the Criminal Procedure Code was filed before the Court of Ld. Chief Judge, City Sessions Court at Calcutta being Criminal Revision No. 62 of 2013 which was dismissed on hearing by order dtd. 23/5/2013. The Trial Court subsequently fixed the next date for proceedings on 12/6/2013. It was further contended that the petitioner by virtue of being a mere director of the company not in charge of and responsible for the affairs and the conduct of the company cannot be held vicariously liable for the acts and/or offence committed on behalf of the company. The complaint did not mention any specific allegation against the petitioner and accordingly he does not fall under the purview of Sec. 141 of the Negotiable Instruments Act, 1881 to be indicted.

(2.) The Ld. Advocate for the petitioner submitted that the petitioner was never in charge of and responsible for the conduct of the business of the company and, therefore, he cannot be held liable for any act or omission or commission of offence by or on behalf of the company. He further emphasized that in the complaint specific averments regarding the status of the petitioner and specific acts committed by him to his prejudice as a person in-charge of and responsible for the conduct of the business of the company have not been categorically or particularly enunciated. He stated that a director must be in absolute control of the affairs of the company as a Managing Director or a Joint Director to be responsible for the conduct of the business of the company. A person merely designated to be a Director of the company not controlling or involved in-charge of and responsible for the conduct of the business of the company cannot be inculpated and be vicariously liable to constitute an offence under Sec. 141 of the Negotiable Instruments Act, 1881.

(3.) The Ld. Advocate for the petitioner further argued that the Ld. Trial Court without considering the materials on record facts, and circumstances of the case, status of the person involved, erred in taking cognizance of the case and also to issue process thereafter. The Ld. Advocate in support of his contention relied upon the decisions cited in (2007) 4 SCC 70, (2022) SCC Online SC 1958, (2018) 1C Cr LR (Cal) 515.