BIBEK RAYCHAUDHURI Vs. VIRAMA ENTERPRISES PRIVATE LTD

JUDGEMENT

(1.) The petitioners by filing an application under section 482 of the Criminal Procedure Code sought to quash the proceedings of Case No. C-6736 of 2003 under section 138 of the Negotiable Instruments Act. The backdrop of the present case may briefly be stated as follows: Mr. Amal Kumar Sanyal, as the authorised representative of M/s. Virama Enterprises Private Limited, lodged a complaint before the Chief Metropolitan Magistrate, Calcutta, alleging commission of offence punishable under section 138 of the Negotiable Instruments Act by the petitioners. The said complaint was registered as Case No. C-6736 of 2003. It was alleged in the said complaint that a cheque bearing No. 133968 dated 30.9.2003 was drawn on United Bank of India, Calcutta Branch for an amount of Rs. 15,12,000/- in favour of the opposite party/company against the dues. The O.P. through its Advocate by letter dated 16.10.2003 requested the petitioners to make payment of the aforesaid amount but no payment was made.

(2.) On receipt of the said petition of complaint, learned Chief Metropolitan Magistrate, Calcutta after taking cognizance of the offence transferred the case to the learned 11th Court of Metropolitan Magistrate, Calcutta. The learned Transferee Court after examining the witnesses, by order dated 24.11.2003 being prima facie satisfied, directed issuance of process upon the present petitioners. In terms of an agreement entered into by and between the O.P. and M/s. Otto India Limited, the latter under cover of a letter dated 27.10.2000 handed over to the O.P. three post-dated account payee cheques all drawn on the U.B.I. Calcutta Branch. The said cheques were No. 133966 dated 30.9.2001 for an amount of Rs. 12,83,310/- No. 133967 dated 30.9.2002 for an amount of Rs. 15,59,250/- and No. 133968 dated 30.9.2003 for Rs. 15,12,000/- only. The said post-dated cheques were handed over on 27.10.2000 by the erstwhile management of M/s. Otto India Limited. The petitioners joined as Directors of the said M/s. Otto India Ltd. on 14.11.2002. Petitioner Nos. 1 and 2 resigned from the Board of Directors of Company on 14.06.2003 and No. 3 resigned on 05.08.2003 and, thereafter, petitioner No. 4 also resigned from the Board on 26.09.2003. Thus, at the time of handing over of the said post-dated cheques to the O. P., the present petitioners were not in the Board of Directors. They also ceased to be Directors when the cause of action for dishonour of the cheques arose in the month October, 2003. The present petitioners were non-executive rotational Directors only attending the periodic Board Meetings of the company during their short tenure of their office between the period 14.11.2002 to 26.09.2003. They were never looking after the day-to-day affairs of running of the business of the company, during the tenure of their office.

(3.) Opposite party sent a notice dated 16.10.2003 for dishonour of the cheque dated 30.9.2003 for Rs. 15,12,000/- and demand was made for payment of the said amount within 15 days of receipt of the said notice. The present petitioners duly replied to the same thereby intimating that the present petitioners were not in charge of or responsible for the conduct of the business of the company at the relevant time. The petitioners called upon the Advocate of the O. P. to recall, rescind, withdraw or cancel the impugned notice dated 16.10.2003 but instead of doing the same, the said O.P. lodged the petition of complaint under section 138 of the Negotiable Instruments Act.