CHEEDI LAL GUPTA Vs. SURESH DAMANI

JUDGEMENT

(1.) THE opposite party No. 1 lodged a complaint with the learned Chief metropolitan Magistrate, Calcutta against one M/s. Gaya Prasad Chhedi lal, said to be a partnership firm and three others including the present petitioner Chhedi Lal Gupta who are said to be the partners of the said firm. In terms of the petition of complaint under Sections 138/141 of the n. I. Act a certain cheque which was issued by the firm in favour of the opposite party towards discharge of debt or other liability was got bounced back as a result of which the criminal proceeding followed after service of a notice of payment under Section 138 (b) of the N. I. Act. Of the four accused persons it is the accused No. 4 Chhedi Lal Gupta who is the petitioner herein being aggrieved with the order dated 8th November, 2006 whereby the learned Magistrate rejected the prayer of the present petitioner praying for dropping of the proceeding. The contention of the petitioner was that he was in noway liable to answer the charge as he was never a partner of the firm. The learned Magistrate observed that whether the petitioner was partner of the firm or not cannot be considered without recording of evidence and accordingly prayer for discharge was rejected.

(2.) MR. Subrata Basu, learned Senior Advocate appearing for the petitioner submitted that the petitioner was never the partner of the firm and no document was produced in support of such averment. A bare statement in the petition of complaint that the petitioner was one of the partners of the firm is not sufficient for the purpose of lodging the prosecution under Sections 138/141 of the N. I. Act. The second submission of Mr. Basu is that under Section 141 of the N. I. Act if the accused is a company every person who at the time the offence was committed was in-charge of, and was responsible to the company for the conduct of the business of the company as well as the company shall be deemed to be guilty of the offence and accordingly petition of complaint must bear an averment that the persons sought to be prosecuted were in-charge of and was responsible to the company for the conduct of the business of the company, but in the instant case it has not been alleged or averred in the petition of complaint that the petitioner was in-charge of and responsible to the company for the conduct of the business of the company. Reference in this connection has been made to the decision reported in 2007 AIR scw 1880 (N. K. Wahi v. Shekhar Singh and Ors.), where it has been observed with reference to S. M. S. Pharmaceuticals and Anr. , 2005 (8) SCC 89 that a complaint must contain specific allegations against the Directors as to how they are in-charge of and responsible to conduct of the business of the company. Now in S. M. S. Pharmaceuticals Limited v. Neeta Bhatta, reported in 2005 SCC (Cri) 1925 it was observed as follows:-

(3.) MR. Amit Bhattacharyya, learned Counsel appearing for the opposite party No. 2, the complainant, submitted that Section 141 of the n. I. Act deals with vicarious liability by virtue of which a director of a company is held liable who was in-charge and responsible for the conduct of business of the company at the relevant point of time when the alleged often took place. It is further submitted that what is the requisite averment to attract a director criminally liable was dealt with in a three Judges Bench decision of the Supreme Court in S. M. S. Pharmaceutical Ltd. , 2005 SCC (Cr) 1975: 2005 (2) C Cr LR (SC) 457 (Paras 8/17/18/19) wherein it has been observed that it is necessary to specifically aver in a complaint under section 141 of the Act that at the time offence was committed the person accused was in-charge of and responsible for the conduct of business of the company and in absence of such averment the requirement of Section 141 cannot be said to be satisfied. It is submitted that the decision in n. K. Wahi (supra) does not lay down at all that an averment is a must as to how and in what manner a certain person was responsible for conduct of business of the company or otherwise responsible to it in regard to its , functioning.