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TMI Blog2006 (5) TMI 562X X X X Extracts X X X X X X X X Extracts X X X X ..... g CRR No. 2753/96. As both the criminal proceedings arose out of same facts and parties are same as well as points of law involved are same in these two revisional applications, I intend to dispose of both the criminal revisional applications by this common judgment and order. 2. Before entering into the merit of the case and rival contention of the parties, it would be fruitful to reproduce the facts of the case and I intend to mention first the facts concerning CRR No. 2753 of 1996. 3. O.P. No. 2 Amal Kumar Das as complainant instituted complaint case C. R. No. 317 of 1994 against the present petitioners as accused persons under Sections 138 and 141 of the NI Act before the Court of the learned Chief Judicial Magistrate, Jalpaiguri. It was alleged in the complaint that the complainant is a reputed Government contractor and he is carrying on his contract business under different Government departments. The accused No. 1 namely, M/s. Debendra Bejoy Ghosh and Ors. is a partnership firm and accused Nos. 2, 3 and 4 (present petitioners) are the constituent partners of accused No. 1 firm. The accused No. 1 firm also carries on different works as contractor and they were allotted ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ice to the accused persons through their learned Advocate and the said notice was duly delivered upon the accused petitioners by registered post with acknowledgement and the accused persons received the demand notice on 14.7.94. In spite of receiving the demand notice the accused persons failed and neglected to make payment of the amount of the dishonoured cheque. Accordingly, the accused persons committed offence under Sections 138 and 141 of the Act as was alleged in the complaint petition. In the petition of complaint the complainant also disclosed that the accused persons have committed offence under Section 420 of the IPC and he will file a separate complaint for the said offence. 7. The complainant lodged the complaint case being C.R. No. 317/94 on 16.8.94 in the Court of learned CJM. Jalpaiguri, who after taking cognizance, transferred the complaint to the Court of learned Judicial Magistrate, 1st Court, Jalpaiguri, The learned Judicial Magistrate thereafter perusing the complaint and examining the complainant under Section 200 of the Code came to the decision that prima facie offence under Sections 138 and 141 of the NI Act has been made out against the accused petitione ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... petitioners in favour of the de facto complainant. It is purely a case under Section 138 of the NI Act. There was no firm under the name and style of M/s. Debendra Bejoy Ghosh and Ors. and the cheque was issued on personal account and not for the alleged firm. Therefore, there was no element of Section 141 of the NI Act at all, and Section 141 of the NI Act has no manner of application in the present case. 10. Mr. Bagchi submitted that in the petition of complaint which was filed on 16.8.94, the O.P. No. 2 disclosed his intention that prima facie elements of Section 420 of IPC was also there but, it is not dear as to why in the petition of complaint he did not include offence under Section 420 of IPC. It is well-known that when the main matter is concerning dishonour of a cheque, elements of Section 420 of IPC does not lie. Filing of the second complaint by the de facto complainant under Section 420 of IPC against the accused persons for same facts, same allegations and concerning same dishonoured cheque amounts to abuse of process of law and discloses malice of the de facto complainant. Filing of the second complaint under Section 420 of IPC over same set of facts for which ear ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... notice. In spite of receipt of notice the accused petitioners did not make payment of the amount of the dishonoured cheque. Naturally, all elements of Section 138 of the NI Act were attracted. Whether elements of Section 141 of the NI Act would be attracted or not and, whether there was no existence of the firm as alleged or, whether the cheque was issued from account of the firm, or, whether from personal account of partners are matter of fact to be considered in the trial on the basis of evidence. The learned Magistrate after going through the contents of the complaint and the statement of the complainant recorded under Section 200 of the Code rightly issued process. There is no ground for quashing the said criminal case. Mr. Mitra submitted that the question concerning elements of Section 141 of the NI Act may be kept open to be decided by the learned Trial Court on the basis of evidence. But at this stage, there is no ground at all to quash the proceeding or to recall the process under Section 141 of the NT Act. 14. Mr. Mitra submitted further that when a cheque is dishonoured the person who issued the cheque is liable, The accused persons in their defence can rebut the pres ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t during investigation the police found prima facie case and at this stage the said chargesheet cannot be quashed. For the ends of justice both the complaint case and the police case may be tried in same Court as in both the cases same cheque which was dishonoured was involved. 16. Mr. R.K. Ghosal, the learned Advocate appearing for the State submitted that he has nothing to say so far as it relates to the complaint case being case No. C.R. 317 of 1994. But the police case being G.R. Case No. 1275/94 arising out of Jalpaiguri Kotwali P. S. Case No. 370/94 has ended in submission of. chargesheet under Section 420 of IPC against the petitioners. The submission of chargesheet clearly indicates that on the basis of evidence collected during the course of investigation prima facie elements of offence under Section 420 of IPC were established against the accused petitioners. Therefore, at this stage there is no ground for quashing the criminal proceeding being G.R. Case No. 1275 of 94. Mr. Ghoshal submitted that as the facts of both the cases are almost identical in nature concerning dishonour of cheque issued by the accused petitioners in favour of the de facto complainant, both the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n Bank, Jalpaiguri for encashment of the cheque but, the said cheque was bounced with banker's note or endorsement 'insufficient fund'. The complainant issued demand notice through his Advocate in view of provisions of Section 138(b) of the NI Act on 11.7.94 and the accused persons received the notice on 14.7.94. In spite of receipt of notice, the accused persons did not make payment of the amount of the dishonoured cheque. Thereafter, the complainant lodged the complaint under Section 138 against the accused persons 2 to 4 and under Section 141 against the accused No. 1 firm and the learned Magistrate after taking cognizance issued process which resulted into initiation of complaint case No. C.R. 317/94. 20. In the petition of complaint the complainant disclosed that the accused persons had the intention to cheat him right from beginning and he would lodge a separate proceeding against accused persons under Section 420 of IPC. Thereafter, he lodged another complaint in the Court of the learned CJM at Jalpaiguri which was forwarded to the Kotwali P.S. for investigation under Section 156(3) of the Code and on the basis of it Kotwali P.S. Case No. 370 of 1994 under Sec ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... it clear that where company alleged to have been committed offence, everyone who was in charge of and was responsible for the business of the company and any other person who is a Director or a Manager or a Secretary or officer of the company with whose connivance or due to whose neglect the company has committed offence can be prosecuted in a proceeding under Sections 138 and 141 of the NI Act. 23. Mr. Bagchi submitted before us that the cheque was not issued in the name of the firm and there was no existence of the firm under the name and style M/s. Debendra Bejoy Ghosh and Ors., a proprietorship firm. I am of opinion that, whether there was existence of the firm or not and, whether the cheque in question which was dishonoured was issued in the name of the said firm or from personal account of anyone or any two of the partners of the said firm can be decided on the basis of evidence in the trial before the learned Magistrate and these are pure questions of fact mixed with law which cannot be decided without consideration of evidence. Accordingly, at this stage this Court finds no ground at all to quash the complaint case being case No. C. R. 317/94 against the alleged firm and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... el and Alloys Pvt. Ltd. (supra) is distinguishable. 26. After going through the facts and circumstances as disclosed in FIR of G.R. Case No. 1275/94 and complaint case being C.R. No. 317/94, I am of opinion that, in the present case the decision of G. Sagar Suri v. State of U.P. (supra) and Gautam Banerjee v. State of West Bengal (supra) are properly applicable. In G. Sagar Suri v. State of U.P. (supra) the complainant earlier lodged a complaint under Section 138 of the NI Act when the cheques issued by the accused persons and presented by the complainant for encashment were dishonoured. Thereafter, the complainant again lodged FIR No. 517/97 and it resulted into submission of chargesheet. G. Sagar Suri, one of the accused persons preferred application for quashing before the High Court under Section 482 of the Code in respect of the police case in which chargesheet was submitted and the High Court of Uttar Pradesh rejected such prayer. Thereafter, G. Sagar Suri as appellant moved the Supreme Court and the Hon'ble Supreme Court observed that during investigation the investigating agency did not look into the complaint filed earlier under Section 138 of the NI Act. It was arg ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ther complaint under Section 420 of IPC and this shows his motive to create more pressure on the accused petitioners and to put them under harassment. If the facts of the case are considered properly, it would become clear that, there was no inducement or fraudulent or dishonest intention on the part of the accused persons right from the beginning of the transaction. That being the position filing of the second complaint i.e. FIR against the same set of accused persons for dishonour of the same cheque amounts to abuse of the process of law and the criminal proceeding arose out of the police case is liable to be quashed against the petitioners. Starting of the second complaint i.e. FIR giving rise to Jalpaiguri Kotwali P.S. Case No. 370/94 dated 11.10.94 under Section 420 of IPC is bad in law. 29. Section 482 of the Code empowers High Court to prevent abuse of the process of Court and to secure ends of justice. Continuation of the proceeding of G. R. Case No. 1275/94 arising out of Jalpaiguri Kotwali P.S. Case No. 370/94(11.10.94) under Section 420 of IPC is clearly an abuse of process of law and taking of cognizance by the learned Magistrate was also bad in law and the said crim ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on under Section 205 of the Code was filed on behalf of the accused persons. If any such application is pending the learned Magistrate would dispose of the same in accordance with law keeping in mind that Case No. C.R. 317/94 is a summons procedure case and summons against accused persons were issued. In view of the discussion made above the criminal proceeding being G.R. Case No. 1275/94 pending before the learned SDJM, now ACJM, Jalpaiguri arising out of Kotwali P. S. Case No. 370/94 dated 11.10.94 is hereby quashed. 32. The revisional application bearing No. 1142/96 is accordingly allowed and disposed of in the light of the observation made above. The revisional application being C.R.R. No. 2753/96 is hereby dismissed in view of the discussions made above. 33. All interim orders passed earlier stand vacated and the learned Magistrate is directed to take effective steps for early disposal of the complaint case No. 317/94. 34. I make it clear that the observation made by this Court in this revisional applications are only for the purpose of the matter or points concerning revisional applications and this Court has not entered into merit of the case and the learned Magistr ..... X X X X Extracts X X X X X X X X Extracts X X X X
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