2023 (10) TMI 799

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...., Kolkata 700017, filed a complaint against the petitioner herein along with the accused company and others before the Learned Metropolitan Magistrate, 7th Court, at Calcutta, in connection with complaint case no. C/995 of 2013 (CRR 1182 of 2016) and complaint case no. C/996 of 2013 (CRR 1184 of 2016) under Section 138/141 of the Negotiable Instruments Act, 1881 (for short N.I. Act) alleging, inter alia that the accused company namely Deccan Chronicle Holdings Limited in discharge of its alleged existing debt and liability issued an account payee cheque dated 21.08.2012 for a sum of Rs. 5,00,00,000/- (Rupees five crores in connection with CRR 1182 of 2016) bearing cheque no. 000715 and sum of Rs. 7,12,603/- (Rupees seven lac twelve thousand....

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.... 5. Ld. Advocate, Mr. Mrityunjay Chatterjee, appearing on behalf of the petitioner has submitted that written complaint lodged under Section 138/141 of the NI Act never disclosed the actual role of the petitioner in the issuance of alleged cheques. It is submitted that there must be an averment that accused was in charge of and responsible for the conduct of the business. 6. In support of his contention he relied on following cases:- • Monaben Ketanbhai Shah and another Vs. State of Gujarat and others reported in 2004 Supreme Court Cases 1875 • S.M.S. Pharmaceuticals Ltd. Vs. Neeta Bhalla and another reported in 2005 Supreme Court Cases (Cri) 1975p • N.K. Wahi Vs. Shekhar Singh and others reported in ....

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....ness of the company, as well as the company, shall be deemed to be guilty of the offence and shall be liable to be proceeded against and punished accordingly: Provided that nothing contained in this sub-section shall render any person liable to punishment if he proves that the offence was committed without his knowledge, or that he had exercised all due diligence to prevent the commission of such offence: ^22[Provided further that where a person is nominated as a Director of a company by virtue of his holding any office or employment in the Central Government or State Government or a financial corporation owned or controlled by the Central Government or the State Government, as the case may be, he shall not be liable for p....

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....rector of a company nominated by the Central or State Government. 11. (2) of Section 141 deals with the proof of facts with regard to consent or connivance of the director, manager, secretary or any other officers of the company in committing offence by the company. 12. Therefore, in view of provision of Section 141(1) and proviso thereto it appears that at the threshold of the case liability is on the complainant to make averment in the complaint regarding responsibility of the accused and accused can also furnish some sterling incontrovertible material or acceptable circumstances to substantiate the contention that alleged offence was committed without his knowledge. 13. It is needless to mention that no such sterling material ha....

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....ng from demand promisary note, had drawn an issued cheque out of a Bank account maintained by them with ICICI Bank Limited, for a sum of Rs. 7,12,603/-(Rupees seven lac twelve thousand six hundred three) only to and in favour of the complainant and delivered the cheque to the complainant at its said office at 10, Camac Street, Kolkata 700017, within the jurisdiction of this Ld. Court details of which is given below....." 14. In fact, the actual role of the petitioner in the company, in my opinion, cannot be said to be in special knowledge of the complainant whereas role of the petitioner/accused in the company is surely within the special knowledge of the petitioner/accused himself, and that could have been substantiated by any sterling ....