CRIMINAL REVISIONAL JURISDICTION v. The State of West Bengal & Anr.

Judgment

1. By filing this Criminal Revisional application, petitioner/accused has prayed for quashing of the proceedings being Complaint Case No. C/98169 of 2016 filed under Sections 138/141 of the Negotiable Instruments Act, 1881 (hereinafter referred to as ‘N.I. Act’) pending before the Court of the Learned Metropolitan Magistrate, 15th Court at Calcutta against the accused persons including the Petitioner herein.

2. The brief facts, leading to filing of this instant Criminal Revisional application, are as under: 2a. The Opposite Party No. 2 herein has filed a complaint case before the Court of the Learned Additional Chief Metropolitan Magistrate at Calcutta alleging therein that the four accused persons including the present Petitioner have committed offence punishable under Sections 138/141 of the Negotiable Instruments Act, 1881. 2b. On the basis of the aforesaid complaint, vide order dated

14.07.2016, the Learned Magistrate took cognizance and transferred the case to the Court of the Learned Metropolitan Magistrate, 15th Court at Calcutta for its inquiry and disposal. 2c. After examining the Opposite Party No. 2 under Section 200 of the CrPC vide order dated 20.08.2016, the Learned Magistrate 3 issued summons to the accused persons including the present Petitioner. She appeared before the Learned Trial Court and filed an application under Section 205 of the CrPC seeking exemption from personal appearance. 2d. According to the Petitioner, she is innocent and in no way connected with any offence as alleged. Actually, she was a Non- Executive Director of M/s. Tulsyan Papers Products Ltd. She was never in charge or responsibility to any day to day’s affairs of the Accused No. 1 Company or ever taken any remuneration for such directorship. She was neither authorised signatory nor operating any bank account of the accused company. 2e. It is further contention of the Petitioner that she had resigned from the Board of Directors of the accused company on and from 2nd September, 2015 and said resignation was accepted by the Board of Directors of the Company on the same date and to that effect the Board of Directors of the accused Company intimated the factum of acceptance of resignation to the Registrar of Companies on 1st April, 2016. Despite the aforesaid facts, the Learned Magistrate was pleased to issue summons in a mechanical manner against the Petitioner. She is no way connected either directly or indirectly in the alleged offence. Consequently, the proceeding against the Petitioner is 4 bad in law, which is required to be quashed for securing the ends of justice otherwise petitioner would be highly prejudiced. SUBMISSIONS ON BEHALF OF THE PETITIONER:

Mr. Mondal along with Ms. Mitra, learned counsels appearing on behalf of the Petitioner submitted that the Opposite Party No. 2 has lodged a false and fabricated complaint against the Petitioner. She is no way connected with any of the alleged offences punishable under Sections 138/141 of the Negotiable Instruments Act, 1881. Petitioner has neither issued any cheque in question nor guilty of vicarious liability since she was not the Director of the Company during such period when alleged cheque was issued as such the instant proceeding is not at all maintainable against the Petitioner. 3a. It is further submitted that time and again the Hon’ble Supreme Court in number of decisions has laid down criteria under which High Courts may exercise its inherent power in order to quash the proceeding pending before any Court of law. The Hon’ble Supreme Court has held that where a criminal proceeding is manifestly attended with mala fide and/or where the proceeding is maliciously instituted with an ulterior motive for wreaking vengeance on the accused and the same would amount to sheer abuse of 5 process of the Court then High Courts can quash the proceeding without any delay. 3b. It is further submitted that the Learned Magistrate has failed to appreciate that that the Petitioner herein had resigned from the Company prior to commission of offences as alleged. 3c. It was further failed to appreciate the Section 141 of the Negotiable Instruments Act, 1881 incorporated for punishing those accused, who is guilty of ‘Vicarious Liability’. The officers of a Company, who are engaged in the day-to-day affairs of the Company and when Company becomes an accused, it is important criteria that such officers need to be officers of the offending Company at the time of commission of the offence and such officer must also be factually involved in the day-to-day function of the Company. Here, in the instant case, the Petitioner has played no role during alleged commission of offence. Thus, Complaint lacks basic averments to attract the legal fiction infused under Section 141 of the N.I. Act. The Opposite Party No. 2, with the ulterior motive to malign the petitioner, has impleaded in the instant case. This principle has been propounded both by the Hon’ble High Court as well as Hon’ble Apex Court. In such view of the matter, continuance of the instant proceeding is a sheer abuse of the process of Court which should not 6 be allowed to continue for a single day and same is liable to be quashed. 3d. The learned counsels further submitted that the Learned Trial Magistrate has also failed to consider that the Petitioner had never transacted with the Opposite Party No. 2 at any point of time as such continuation of the impugned proceeding qua the Petitioner is a clear abuse of the process of Court inasmuch as the Petitioner herein had resigned from the Directorship of the accused No. 1 Company prior to alleged commission of offence as such proceeding pending before the Learned Magistrate is liable to be quashed. 3e. Learned counsel appearing on behalf of the Petitioner has placed reliance of the following judgments to support his contention for quashing of the proceedings as follows:

1. S.M.S. Pharmaceuticals Ltd. Vs. Neeta Bhalla and Another1;

2. K. K. Ahuja Vs. V. K. Vora and Another2;

3. Ashok Shewakramani and Others Vs. State of Andhra Pradesh and Another3;