SONS P WALVEKAR Vs. STATE OF WEST BENGAL

JUDGEMENT

(1.) BY this revisional application dated 29. 3. 2007 under Section 82 of the Cr. P. C. prayer has been made for quashing of a proceeding being case no. C-296 of 1996 pending before the learned Metropolitan Magistrate, 8th court, Calcutta on the grounds inter alia that the learned Magistrate without application of judicial mind took cognizance of offence under Section 141 of N. I. Act which makes it a mandate that in order to bring an accusation against the company or a firm or its directors, it is necessary to aver and prove that any director was in-charge or responsible for day-to-day running of the business of the company and in what manner the said director was responsible for the conduct of business of the company or otherwise responsible to it in regard to its findings and in absence of such pleading no prosecution can be under the said section of the law.

(2.) THE opposite party No. 2 lodged a complaint with the learned metropolitan Magistrate, 8th Court, Calcutta against M/s. Decal Aluminium industries and Exports Pvt. Ltd. , Mr. Pradip Shankarrao Walvekar, Managing director of the said company and Mrs. Sone P. Walvekar, Director of said company alleging that the accused No. 1 towards discharge of legal liability issued two cheques being number 230463 dated 30. 4. 1996 for Rs. 25 lakh drawn on Rupees Co-operative Bank Ltd. , Premnagar Branch, Pune and cheque No. 224554 dated 30th April, 1996 for Rs. 5 lakh only drawn on state Bank of Hyderabad, Pune Branch in favour of the complainant. Both the cheques were signed by the accused No. 2 and delivered by him also to the complainant at his office at 163, Muktaram Babu Street, Calcutta - 700 007. The complainant deposited on 21. 5. 1996 the two cheques with the bank namely The Federal Bank Ltd. , Burrabazar Branch, Calcutta which on 31st may, 1996 informed the complainant that both cheques had been dishonoured for insufficiency of fund vide memo No. dated 24. 5. 1996. Then followed statutory notice dated 5. 6. 1996 demanding payment of the amount covered under the bounced cheques. The notice was duty received by the accused No. 1 on 16. 6. 1996, while accused Nos. 2 and 3 refused to receive and acknowledge the notice and the notice was returned back to the complainant's Counsel with the remark "refused" made by the postal peon on 10. 6. 1996. However on 16. 6. 1996 the accused persons paid back Rs. 5 lakh by a demand draft dated 11. 6. 1996 drawn in favour of the complainant payable at Bank of Maharshtra, Calcutta but no payment was made in respect of the other cheque being No. 230463 dated 30th April, 1996 to the complainant within 15 days of the receipt of the notice and hence the prosecution.

(3.) IN the midst of the trial of the case, the accused No. 2 Mrs. Sone p. Walvekar said to be Director of the accused No. 1 company took out the revisional application to challenge the proceeding against her on the sole ground that vicarious liability cannot be fastened against her unless in terms of Section 141 of the N. I. Act there is clear averment in the petition of complaint that the petitioner was in charge and/or responsible for the day-to-day running of the business of the company and further it is averred as to in what manner the petitioner was responsible for the conduct of the business of the company or otherwise responsible to it in regard to its functioning ; and as in the instant petition of complainant such pending is totally absent, and as therein no specific overt act has been attributed to the petitioner regarding involvement of the petitioner in the commission of the alleged offence the continuance of the proceeding before the learned magistrate would be an abuse of the process of Court. This is the only ground canvased in the revisional application.