ABHIJIT BANERJEE Vs. STATE OF WEST BENGAL

JUDGEMENT

(1.) Order of acquittal in favour of respondents No.2 and 3 dtd. 28/11/2017 passed by the learned Judicial Magistrate, 4th Court at Asansol of the charge under Sec. 138 of the Negotiable Instruments Act registered as C. Case No.53 of 2013 is under challenge in the instant appeal by the complainant/appellant. Shorn of unnecessary details, the case of the appellant is that he as a complainant filed a complaint under Sec. 138 of the N.I Act alleging, inter alia, that the respondents No.2 and 3 are the Directors of a company under the name and style of M/s Amba Complex Private Limited at Asansol in the district of Paschim Bardhaman. The appellant is an income tax consultant and he worked for the said company previously in relation to their income tax etc. Since respondents No.2 and 3 were closely acquainted with the appellant they approached him to lend a sum of Rs.30,50,001.00 to purchase real estate in the name of the said company on consideration that the appellant would be made a Director of the said company having 1/3 share. The complainant agreed to such proposal and during the period between 7/11/2009 to 12/1/2010, he lend a total sum of Rs.30,50,001.00 by cheque and cash to purchase real estate property in the name of the said company. However, the respondents did not take any resolution admitting the complainant as one of the Directors of the said company and delayed the matter. Over the said issue the complainant filed civil suit against the respondents/accused persons. On 30/9/2012 they proposed the complainant for amicable settlement and handed over three cheques amounting to Rs.20,50,001.00 in order to discharge their legally enforceable debt/liability in part. They also compromised to pay balance amount of Rs.10.00 lakhs on the date of withdrawal of the civil suit. The respondent No.2 issued two cheques bearing No.460648 and 460649, both drawn on Bank of Maharashtra, Asansol Branch for a sum of Rs.1300001.00 and Rs.500000.00 respectively. However both the said two cheques were dishonoured on the ground 'account closed'. The complainant issued statutory notice demanding repayment of cheque amount during the statutory period of time to the respondents. Both the respondents received the notice but they failed and neglected to make payment of the said amount which prompted the complainant to lodge the complaint under Sec. 138 of the N.I Act against the respondents.

(2.) The respondents duly appeared to face trial of the said case before the learned Magistrate, 4th Court at Asansol. They were examined under Sec. 151 of the Cr.P.C when they pleaded not guilty. During trial the complainant and another witness being an employee of the banker of the complainant were examined. Relevant documents were marked exhibits. The accused persons were examined under Sec. 313 of the Cr.P.C. However, they did not adduce any evidence in support of their defence.

(3.) From the trend of the cross examination of the witnesses on behalf of the complainant it is ascertained that the accused persons took a specific plea of denial of the case of complainant of having lend a sum of Rs.30,50,001.00 either to the complainant company or to the respondents in their personal capacity. It is however admitted by the respondents that the complainant paid a cheque of Rs.20,50,001.00 in favour of company. The respondents also took that, in any event the allegation of the appellant/complainant is that he lent money to M/s Amba Complex Private Limited and not the respondents. Therefore, the company is the main accused in the said proceeding under Sec. 138 of the N.I Act and the responsibility of the respondents may arise on the basis of the principle of vicarious liability. When the company has not been impleaded as an accused and no money was taken in their personal capacity they are entitled to be acquitted.