ANIL BHUTORIA Vs. STATE OF WEST BENGAL

JUDGEMENT

(1.) Petitioner herein has prayed for quashing of the proceeding being case no. C/47790/13 under Sec. 138 read with Sec. 141 of the Negotiable Instrument Act 1881 (in sought NI Act) pending before learned Magistrate 13th Court, Calcutta. The case made out in the complaint by the opposite party no. 2/complainant herein is that on 22/6/2022 the petitioner was inducted as a director of the companies, namely Leonine estate Pvt. Ltd. and Leonine Abode Pvt. Ltd.. It is alleged that on the request of the accused persons a total sum of Rs.99.00 lakh was provided to them in-between 29/5/2012 and 15/6/2012. The accused persons in discharge of balance legal liabilities along with other dues issued two cheques being no. 087316 and 087317 both dtd. 20/7/2013. When the complainant placed the said two cheques to his banker for encashment, it were dishonored on the ground of "exceeds arrangement". The said complainant/company thereafter issued statutory demand notice on 1/11/2013 and the accused person inspite of receipt of the said notice, failed to pay the amount mentioned in the cheque and as such the present proceeding has been initiated on the ground of dishonor of cheques.

(2.) Mr. Banerjee, learned senior counsel appearing on behalf of the petitioner submits that the petitioner herein resigned from both the companies on 5/11/2013. He further submits that although petitioner was appointed as a director but he was neither a signatory nor was ever authorized to sign to any cheque on behalf of the company. He further submits no notice of the meeting of the Board of Director of the company was ever served upon the petitioner. Infact he had himself invested huge sum of money in the said company and he yet to get returns on his investments.

(3.) He further submits that in the complaint it has only been mentioned that the accused no. 1 mentioned in para 3 of the complaint that the accused no.1 is a company and accused no. 2 and 3 are acting directors of the said company and they are responsible for the conduct of day to day business of accused company being accused no.1 and there are no other averments in respect of the petitioner nor in the initial deposition recorded by the magistrate. Accordingly the complaint lacked basic averments which are required to attract the provisions of Sec. 141 of the N.I. Act for implicating the present petitioner under Sec. 138 of the N.I. Act. In this context he relied upon judgment of S.M.S Pharmaceuticals Ltd. Vs. Neeta Bhalla and Another, (2005) 8 SCC 89 . Referring another judgment reported in (2023) 8 SCC 473, Ashoke Shewakramani and Others Vs. State of Andhra Pradesh and Another petitioners contended that the words "was in charge of and" "was responsible in the company in the conduct of business of the company" cannot be read disjunctively and the same must be read conjunctively. Accordingly he submits that in view of latest findings of the Hon'ble Apex Court, the averment made in the petition of complaint is insufficient for the purpose of taking cognizance upon the impugned complaint. Except bald allegation made in paragraph 3, there is no averment regarding specific role played by the petitioner in committing the alleged offence.