MANISH KUMAR Vs. MANISH SHARMA

JUDGEMENT

(1.) This is an application under Article 227 of the Constitution of India filed by the petitioner/accused praying for quashing/setting aside the judgement dated 20th October, 2006 passed by learned Additional District and Sessions Judge, 4th Fast Track Court, Bichar Bhawan, Kolkata in Criminal Revision No. 110 of 2006 arising out of order dated 27th March, 2006 passed by the learned Metopolitan Magistrate, 14th Court, Kolkata in C.1564/2004 under Section 138 of Negotiable Instrument Act. According to the petitioner, opposite party No.1 filed petition of complaint under Section 138 of the N.I. Act in the court of learned Chief Judicial Magistrate, Kolkata bearing Complaint Case No. 1564/2004 in its personal capacity, without being a representative of company Ankur Business Private Limited. The opposite party No.1 disclosed himself as a staff and working for gain in Ankur Business Private Limited without disclosing that Ankur Business Private Limited is a company incorporated in Company's Act. No copy of resolution passed by the Board of Directors of Ankur Business Private Limited authorising him in filing the present complaint has been filed. As per terms and agreement between the parties three blank cheques without any date and amount were given to Ankur Business Private Limited on mutual understanding for security purpose without giving any scope for encashing any of the cheques without the consent of the petitioners. Further case of the petitioner is that all the correspondences and business transactions and activities were initiated at Muzaffarpur, State of Bihar. Therefore, there is no scope for entertaining any proceeding before the learned trial court. Further case is that the opposite party No.1 filed an application for substitution by inserting the name of one Soumen Chakraborty being the representative of M/s. Ankur Business Private Limited instead and in place of opposite party No.1. Opposite party further filed application for alteration of the copy of the cheques by placing new cheques instead and in place of existing cheques upon which the proceeding was initiated.

(2.) Learned trial court vide its order dated 27th March, 2006 rejected the application filed by the petitioner challenging the maintainability of the proceeding. The cheques had been issued by M/s. Kalyani Agency to M/s. Ankur Business Private Limited, but there is no whisper about the name of the companies in the petition of complaint. Therefore, learned court should not have entertained the complaint. Further case is that there is no provision in the Code of Criminal Procedure to file any application of amendment, substitution, modification, correction or addition to the application upon which cognizance was taken by the learned court to initiate the proceeding but learned trial court allowed the petition filed by the opposite party No.1. Learned court without taking into consideration the materials on record and provision of law rejected the application filed by the petitioner and allowed the application filed by the opposite party No.1 by judgement dated 27th March, 2006. The petitioner preferred a Revisional Application under Sections 397/399 of the Code of Criminal Procedure in the court of City Sessions Judge, Kolkata bearing No. 110 of 2006. But learned Revisional Court without taking into consideration of the materials on record and provision of law dismissed the revision application and thereby affirmed the order passed by learned trial court. Since Manish Sharma has no locus standi to initiate the proceeding on behalf of M/s. Ankur Business Private Limited, same should have been dismissed by the learned trial court. Therefore, the petitioner filed this application under Article 227 of Constitution praying for quashing or setting aside the order passed by learned Additional District and Sessions Judge, 4th Fast Track Court, Bichar Bhawan, Kolkata in Criminal Revisional Case No. 110 of 2006 arising out of Order dated 27th March, 2006 passed by the learned Metropolitan Magistrate, 14th Court, Calcutta in C/1564 of 2004 under Section 138 of N.I. Act.

(3.) I have heard the submissions of learned advocates appearing for the petitioner as well as learned advocate appearing for the O.P. No.1 and O.P. No.2 being the State of West Bengal.