9911796707
TMI Blog2023 (3) TMI 531X X X X Extracts X X X X X X X X Extracts X X X X ..... e matter therein has been withdrawn in accordance with the three settlement agreements with liberty to file appropriate applications for revival of the company petition at stage at which it was left of in case there is default. In the present case, the opposite party/complainant has not appeared in spite of due service. The order dated 18.06.2019 passed by the Learned Additional Chief Judicial Magistrate, Bidhannagar, North 24 Parganas, in Case No. C 5223 of 2018 is set aside, not being in accordance with law and the matter is remitted to the Learned Magistrate to dispose of the case in view of the settlement between the parties, by ensuring the presence of both sides, in the interest of Justice within one month from the date of communication of this order - Application disposed off. - CRR 2618 of 2019 - - - Dated:- 27-2-2023 - The Hon ble Justice Shampa Dutt ( Paul ) For the Petitioners : Mr. Dipanjan Dutt, Mr. Surojit Saha , Ms. Sonia Nandy , Mrs. Sonia Ojha For the Opposite Party : None JUDGMENT Shampa Dutt (Paul), J.: The revisional application has been preferred praying for quashing of the proceeding of Case No. C - 5223 of 2018 under Se ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Learned Additional Chief Judicial Magistrate, Bidhannagar, in connection with Case No. C- 5223 of 2018, and filed an application, therein stating that inter alia the petitioner no. 1 is ready to pay the amount of the dishonoured cheque (in respect whereof the impugned proceeding has been initiated by the opposite party) and inter alia prayed that, the said amount may be accepted and the impugned proceedings may be closed and the petitioners herein may be discharged. In the said application, a copy to the demand draft prepared by the petitioner no. 1 for satisfaction of the amount of the aforesaid dishonoured cheque was annexed and the particulars thereof was stated, viz. demand draft no. 062776, dated 22.02.2019 drawn on Bank of India, for an amount of Rs. 6,59,096/- (Rupees Six Lakhs Fifty Nine Thousand and Ninety Six only) in favour of the opposite party. The opposite party filed a Reply-in-Affidavit to the application filed by the petitioners, wherein inter alia the petitioner sought to make payment of the amount of the dishonoured cheque and prayed for closing of the proceedings. The sum and substance of the aforesaid reply filed by the opposite party, is inter alia to the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... commission of an offence under Section 138 of the said Act, would be vicariously liable therefore. However, such vicarious liability can be inferred so far as a company registered or incorporated under the Companies Act, 1956 is concerned only if the requisite statements, which are required to be averred in the complaint petition, are made so as to make the accused herein vicariously liable for the offence committed by the company. Section 141 of the Negotiable Instruments Act, 1881, being a penal provision creating vicarious liability, must be strictly construed. It is trite law that arraigning a person as an accused with the aid of section 141 of Negotiable Instrument Act, 1881, with the mere averment that the said person is a Director of the accused company, does not satisfy the requirement of Section 141 of the said Act. It is incumbent on the complainant to spell out in the complaint the basic averment that the Director (arrayed as an accused) was in charge of and was responsible to the accused Company for the conduct of its business, apart of the specific role played by the said Director in the dishonour of the cheque. This is in consonance with strict interpretation of pena ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 14.03.2019, the petitioners filed a petition before the Trial Court praying for compounding the case by submitting a demand draft for the cheque amount. On 18.06.2019 the Magistrate, rejected the said petition as the complainant refused the said payment Hence the revision. In spite of due service, there is no representation on behalf of the opposite party. The petitioner has filed a supplementary affidavit showing that a Deed of Settlement between the parties has been executed on 27.01.2022, showing the terms of settlement for payment. Order dated 28th February, 2022 of the National Company Law Tribunal (NCLT) Kolkata, in the matter of Oarsman Capital Pvt. Ltd. Ors. vs Ideal Real Estates Pvt. Ltd. (C.P. (IB)/1621(KB) 2018) is as follows:- ORDER (1) Learned counsel on both sides present. (2) Three settlement agreements all dated 21.01.2022 have been entered into with the three financial creditor who are petitioners in the present petition. (3) The corporate debtor has agreed to settle the outstanding between them in terms of the settlement agreements in which future payments are also envisaged the settlement agreements are taken on record and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Sessions Court or a High Court in revision or appeal, such compounding may be allowed on the condition that the accused pays 15% of the cheque amount by way of costs. (d) Finally, if the application for compounding is made before the Supreme Court, the figure would increase to 20% of the cheque amount. b) Meters and Instruments Private Limited and Anr. Vs Kanchan Mehta, (2018) 1 SCC 560, Criminal Appeals No. 1731 of 2017, on October 5, 2017. 18.3. Though compounding requires consent of both parties, even in absence of such consent, the court, in the interests of justice, on being satisfied that the complainant has been duly compensated, can in its discretion close the proceedings and discharge the accused. c) Saregama (India) Ltd. vs Next Radio Ltd., 2021 SCC Online SC 325, Suo Motu Writ Petition (Crl.) No. 2 of 2020, on April 16, 2021. 4. This gargantuan pendency of complaints filed under Section 138 of the Act has had an adverse effect in disposal of other criminal cases. There was an imminent need for remedying the situation which was addressed by the Negotiable Instruments (Amendment and Miscellaneous Provisions) Act, 2002. Sections 143 to 147 were ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
