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TaxTMI 
TaxTMI 
2025 (6) TMI 1667
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....tioner/accused and sentenced to suffer Simple Imprisonment for one year and also sentenced to pay a fine of Rs. 6,60,000/- (Rupees Six Lakh Sixty Thousand) only, in default, to suffer Simple Imprisonment for another six months. If the fine amount is paid, then out of the same Rs. 6,00,000/- (Rupees Six Lakh) only be given to the complainant as compensation within a period of 90 days from the date of delivery of the said Judgment and Order. 3. The brief facts are relevant for the purpose of disposal of the present application as under: - 3a. The opposite party no. 2/complainant had alleged, inter alia, that an agreement dated 26.06.2013 was entered into between the complainant and the petitioner. In terms of the said agreement, the petitioner was required to pay a sum of Rs. 4,40,000/- as part of the second instalment to the opposite party no. 2 for which an account payee cheque being No. 299019 dated 29.06.2013 was issued in favour of the opposite party no. 2. However, upon presentation, the said cheque was dishonoured with the remarks "Insufficient Funds". It was intimated to the opposite party no. 2 by the bank on 04.09.2013 and in view of the provisions of the Act, a deman....
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....y-Five Thousand) payable in two parts viz an amount of Rs. 5,00,000/- (Rupees Five Lakhs only) at the time of signing of the aforesaid agreement and balance Rs. 3,75,000/- (Rupees Three Lakh Seventy- Five Thousand only) before 50% completion of the entire work. iii. That the petitioner deposed as D.W. 1 that the petitioner had entered into an agreement with M/s. Aryavarat Mercentile Private Limited being a company duly registered under the relevant provisions of the Companies Act, 1956 as amended up to date and not with the Opposite Party No. 2/Complainant in his personal capacity. iv. That the said agreement dated 26.03.2013 (Ext. 1) was signed by the opposite party no. 2 in the capacity of a director of the company being M/s. Aryavarat Mercentile Private Limited whom he was representing and not in his personal capacity. v. That there was no personal agreement with the said opposite party no.2/complainant, hence the question of any legally enforceable debt towards him in discharge of which the security cheque was given does not arise. Hence the allegation of the petitioner issuing the said cheque in valid discharge of his legal debt is vague and for reas....
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..... xi. The Opposite Party No. 2 had failed to prove any liability of the Petitioner against him at the time of issuing of cheque. There was no liability towards the Opposite Party No. 2 at any point of time, hence the basic ingredient to initiate a proceeding under section 138 of the Negotiable Instruments Act is that cheque is to be issued for a debt which is missing in the present case." Hence, this application. 4. None appears on behalf of the opposite parties despite general notice published in local newspaper. Accordingly, the matter has been heard ex parte. SUBMISSION ON BEHALF OF THE PETITIONER: 5. Learned counsel appearing on behalf of the petitioner submitted that in fact, the liability was against the company. However, the complainant has only made the petitioner as an accused. The alleged agreement was executed between two companies. However, subsequently, the de-facto complainant himself has made some modification/alteration in the payment schedule by overwriting certain terms without any consent and/or prior communication to the petitioner. Furthermore, the opposite party no. 2 had filed the complaint under Section 200 of the CrPC on his own persona....
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....3. In the course of cross-examination, the respondent stated that the cheque was signed on the date when the payment was made, nevertheless he stated that he was not aware of the date when he paid the sum of Rs 1,50,000. 6.4. According to the respondent, the cheque was in the handwriting of the accused himself and the very next moment he made a contradictory statement that the cheque was not in the handwriting of the appellant and that he (complainant) wrote the same. 6.5. The respondent also stated that the amount in words was written by him. 6.6. The trial court has also noted that it was not the case of the respondent that the writing in the cheque and filling up of the figures were with the consent of the appellant-accused. 7. In the light of the above evidence, which was lacking in very many material particulars, apart from the contradictions therein, the trial court held that the appellant was not guilty of the offence alleged against under Section 138 of the Negotiable Instruments Act and acquitted him." 5c. In Indus Airways (P) Ltd. and Ors. v. Magnum Aviation (P) Ltd. and Anr., the Hon'ble Supreme Court held in paragraph no. 15 as und....
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...., describing himself as the sole proprietor of the payee, the proprietary concern, describing itself as a sole proprietary concern, represented by its sole proprietor, and the proprietor or the proprietary concern represented by the attorney holder under a power of attorney executed by the sole proprietor. However, we make it clear that the power- of-attorney holder cannot file a complaint in his own name as if he was the complainant. In other words, he can initiate criminal proceedings on behalf of the principal." DISCUSSIONS AND FINDINGS BY THIS COURT: 6. Considering the submissions made by the learned counsel appearing on behalf of the petitioner, judgment relied upon by the petitioner and on perusal of the record, this Court finds M/s. Aryavarat Mercentile Pvt. Ltd deals in the business of real estate development. The said company had entered into an agreement with the Petitioner's company herein for dismantling and removal of the debris arising out of the premises no. 5A, Jagan Nath Sur Lane, Police Station- Burtolla, Kolkata-700006. In terms of the agreement, the petitioner will sell and take possession of all materials, Fixtures and fittings from the two storied buildi....
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....e entire work? This defies logic and casts serious doubt on the genuineness of the transaction. 13. From the evidence of P.W.1, Bimal Dey, it appears he failed to establish when a formal work order was issued by the company to the petitioner and when work was completed. During cross examination he narrated 90% job completed by the petitioner/accused and took away the entire valuable and went away after giving the cheque to him. He further stated he cannot say when, on which date he received the cheque. The accused had given him the cheque after demolishing the building. If that be so then how can a prudent man accept, that the demolition work of a two storied building has been done within three days of execution of the agreement and all valuables were taken away because the cheque reflected the date of issue as on 29.06.2013, just three days from the execution of the agreement. 14. Furthermore, it is not disputed that the agreement was between the two companies. Bimal Dey was one of the directors of M/s. Aryavarat Mercentile Pvt. Ltd. During deposition he also admits there were two other directors, namely Nirmal Dey and Rajib Kumar Saha, excluding him in the company. He furth....