SUNIL CHANDRA BANERJEA Vs. KRISHNA CHANDRA NATH

JUDGEMENT

(1.) This rule was obtained by Sunil Chandra Banerjee alias Sunil Kumar Banerjee who is the manager of the Behala Branch of the Darjeeling Bank.

(2.) The facts which need be mentioned for the disposal of thistle briefly are as follows: The complainant Krishna Chandra Nath filed a petition of complaint against Sunil Chandra Banerjee stating that the complainant had a current account with the bank and had issued a cheque on the bank for Rs. 5,620 and odd for payment to the Bengal Textile Association. The textile authorities sent back the cheque as it was dishonoured and the complainant had to pay cash. He then went to Sunil Kumar Banerjee and told him about this and Sunil Banerjee said that it was necessary always for the complainant to have a cash balance of Rs. 200 in the bank and that as there had not been Rs. 5,820 and odd in the bank to his credit the cheque had been dishonoured. He asked the complainant to deposit Rs. 200 more and said that if this were done, the cheque would be honoured. The complainant deposited the sum of Rs. 200 on 17th Dec., 1946, and he also deposited the cheque in the bank with the manager. The complainant's case is that at that time the bank had already gone into liquidation and had he known that he would not have made the deposit of Rs. 200. He accordingly charged the accused petitioner with having committed offences punishable under Sections 403, 406 and 420 of the Penal Code. A warrant was issued against the petitioner. The criminal proceedings however were not proceeded with because of an order passed by Das, J., in a company matter whereby these proceedings were stayed till the disposal of an application for the sanction of a scheme of amalgamation in respect of the Darjeeling Bank. That application was disposed of on 5th May, 1947, by Edgley, J. Thereafter the criminal proceedings were continued, some witnesses were examined and the petitioner was charged with having committed the offence of cheating.

(3.) The petitioner now applies for the quashing of the said proceedings on various grounds. The first ground is that the proceedings could not continue by reason of the provisions of Sec. 171 of the Companies Act as an official liquidator had been appointed and as no leave had been taken of the Court to continue the criminal proceedings. The next ground taken was that the complainant was given an opportunity for having the stay order vacated but as he did not apply to have the order vacated the continuance of the proceedings without vacating the stay order was without jurisdiction. The next objection related to the merits of the case and it was contended that the evidence does not disclose an offence of cheating.