RAMA GARG Vs. RATAN KUMAR JASRAPURIA

JUDGEMENT

(1.) THIS application under Section 482 of the Code of Criminal Procedure has been taken out by Smt. Rama Garg and Gyan Swaroop Garg praying for quashing of the proceeding, being C. -803 of 1999 under Section 138 read with Section 141 of the Negotiable Instruments Act pending in the Court of the learned; Metropolitan Magistrate, Calcutta mainly on the ground that the petitioner No. 1 simply being a Director of the Accused No. 1 Company, cannot be prosecuted under the Act without any specific averment in the petition of complaint against her and the petitioner No. 2 is a man having no connection, whatsoever, with the accused No. 1 company and in the matter of cheque in dispute. On 09.03.1999, the petition of complaint was filed in the Court of the learned Chief Metropolitan Magistrate, which was registered as C -803 of 1999. It was alleged therein by the complainant Ratan Kumar Jasrapuria that accused No. 4, i.e., Gyan Swaroop Garg (petitioner No. 2 herein) carries on business under the name and style of M/s. G.G. Consultants and the petitioner No. 1, Rama Garg is his wife and Raj Kumar Mondal and Rama Garg are the Directors of Rakaman Chemicals (India) Pvt. Ltd. It has been further averred that on 02.04.1997, the complainant advanced a sum of Rs. 4 lacs to the petitioner No. 2, Ram Swaroop Garg and against that loan, the petitioner No. 1, Rama Garg and accused Raj Kumar Mondal stood as sureties. On 20.12.1997, the petitioner No. 2 Ram Swaroop Garg issued a cheque of his Firm, G.G. Consultants, of a sum of Rs. 1 lac as part payment of the loan. However, that cheque was dishonoured due to lack of funds. The complainant informed Raj Kumar Mondal, Rama Garg and Gyan Swaroop Garg about dishonour of the cheque and repayment of loan. Upon such demand, the petitioner No. 1, Rama Garg and accused, Raj Kumar Mondal issued one cheque of the Rakaman Chemicals (India) Pvt. Ltd. of Rs. 1 lac dated 15.07.1998 in favour of the complainant firm drawn on Punjab National Bank, Kalighat Branch. That cheque was presented for encashment, but, ultimately dishonoured with remark "Stop Payment". A legal notice was served on the petitioners and Raj Kumar Mondal as well as Rakaman Chemical (India) Pvt. Ltd. but, cheque amount was not paid within 15 days from the date of receipt of notice. Accordingly, a prosecution was initiated.

(2.) THE learned Magistrate has taken cognizance of the petition of complaint and transferred the same for enquiry and disposal to the 9th Court of the learned Metropolitan Magistrate. The petitioners Rama Garg and Gyan Swaroop Garg has come up with this application praying for quashing of the proceeding on the ground already stated.

(3.) MR . Dey, learned advocate appearing on behalf of the petitioners, contends that there is no legal bar to file successive application under Section 482 of the Code of Criminal Procedure. It is true, he submits, that Section 482 of the Code of Criminal Procedure is not to be used for the purpose of review or revision of earlier order passed by this Court. He also submits that if any fresh circumstance comes to exist, an application for quashing of the proceeding under Section 482 of the Code of Criminal Procedure can well be filed despite the fact that earlier applications were rejected by this Court. In this case, according to him, after passing the decision by the Hon'ble Apex Court in SMS Pharmaceuticals vs. Neeta Bhalla & Ors., reported in : 2005 (3) JCC [NI] 203 : (2005) 8 SCC 89, S.M.S. Pharmaceuticals Ltd. V. Neeta Bhalla & Anr., reported in : 2007 (1) JCC [NI] 73 : 2007 (2) SCC (Cri) 192, in K.K. Ahuja vs. V.K. Vora & Anr. reported in : 2009 (3) JCC [NI] 194 : (2009) 10 SCC 48 and National Small Industries Corporation Limited vs. Harmeet Singh Paintal & Anr., reported in : 2010 (1) JCC [NI] 86 : 2010 (3) SCC 330, the entire legal position prevailing earlier was changed. The views taken recently by the Hon'ble Apex Court altogether makes it clear that in order to prosecute director of a. company for an offence under Section 138 of the Negotiable Instruments Act, the petition of complaint should contain specific averments against that Director showing his her involvement in the alleged offence or day -to -day business of the company. At the time the earlier application were filed, the said view was not prevailing and, as such, a fresh circumstance has arisen, whatsoever, which, in fact, motivated the petitioners to take out this application.