AMIT GUPTA Vs. STATE OF WEST BENGAL

JUDGEMENT

(1.) This is an application for quashing of proceeding in Complaint Case No. CN/0093082/2016 under Section 138 read with Section 141 of the Negotiable Instruments Act presently pending before the Learned Metropolitan Magistrate, 18th Court, Calcutta.

(2.) The allegations as contained in the petition of complaint, in brief, were that in or about January 2015 the present petitioner and two others being in charge of the accused company namely, Bajrang Road Construction Private Limited approached the complaint/opposite party no. 2 and placed an order for supply of bitumen. On 18.03.2015 the opposite party no. 2 accordingly sold and supplied bitumen to the accused for which the accused company issued five cheques of diverse dates totalling Rs. 7, 00,000/-. Out of these, three cheques were dishonoured for insufficiency of funds. This led to the filing of the present complaint case.

(3.) Mr. Ayan Basu, Learned Counsel appearing on behalf of the petitioner, submitted as follows. The petitioner had joined the accused company as a director with effect from 30.09.2015 as would be evident from a copy of the relevant Form No. DIR 12. Therefore, he was not a director of the accused company at the time of the relevant transaction i.e., in January 2015 and as such, could not be held responsible for the alleged offence of dishonour of cheque pertaining to such prior transaction. Secondly, as would be evident from the bank documents, all dues of the complainant company were paid soon before the issuance of the summons in the present case. Most importantly, in view of the ratio laid down by the Hon'ble Supreme Court in A.C. Narayanan's Case, (2014) 1 C Cr LR (SC) 555 an averment has to be made in the petition of complaint itself about the competence of the power of attorney holder in filing a petition of complaint under Section 138 of the Negotiable Instruments Act. However, in the instant case no such averment was present in the petition of complaint that the attorney was privy to or had personal knowledge about the transactions. Moreover, the averments made in the petition of complaint about the complicity of the present petitioner was absolutely insufficient. On this reliance was placed on a decision of the Hon'ble Apex Court in Ashokmal Bafna versus Upper India Steel Manufacturing and Engineering Company Limited, (2018) 14 SCC 202.