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TMI Blog2025 (3) TMI 556X X X X Extracts X X X X X X X X Extracts X X X X ..... 1 and in such cases even if in the absence of verbatim reproduction of the language of section 141, the complaint has to proceed and is required to be tried. Before issuing process against the present petitioner Anil Bhutoria, the court below ought to have made an inquiry inter alia to get answer to the aforesaid questions either from the materials available from the record or even putting questions to the complainant by himself to elicit answers to the aforesaid questions, to find out whether there are grounds for proceeding against the present petitioner or not. As it is quoted above neither the initial deposition nor the order issuing process dated 08.09.2015 reflects that the magistrate on being prima facie satisfied about the questions raised herein came to a finding that there are reasons to believe that the petitioner has committed the alleged offence. Thus, the order of issuance of process against the present petitioner on 08.09.2015 has not been made in compliance with either chapter XV or chapter XVI of the Code of Criminal Procedure. Conclusion - The issuance of process by the court below under section 204 of Cr.P.C. against the present petitioner Anil Bhutoria by the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d in para 3 of the complaint that the accused no.1 is a company and accused no. 2 and 3 are acting directors of the said company and they are responsible for the conduct of day to day business of accused company being accused no.1 and there are no other averments in respect of the petitioner nor in the initial deposition recorded by the magistrate. Accordingly the complaint lacked basic averments which are required to attract the provisions of section 141 of the N.I. Act for implicating the present petitioner under section 138 of the N.I. Act. In this context he relied upon judgment of S.M.S Pharmaceuticals Ltd. Vs. Neeta Bhalla and Another, (2005) 8 SCC 89. Referring another judgment reported in (2023) 8 SCC 473, Ashoke Shewakramani and Others Vs. State of Andhra Pradesh and Another petitioners contended that the words "was in charge of and" "was responsible in the company in the conduct of business of the company" cannot be read disjunctively and the same must be read conjunctively. Accordingly he submits that in view of latest findings of the Hon'ble Apex Court, the averment made in the petition of complaint is insufficient for the purpose of taking cognizance upon the impugned ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rived at. In the instant case the order dated 8th September, 2015 by which the Trial Court issued process against the petitioners does not meet the criteria. Accordingly petitioner has prayed for quashing the proceeding. 6. Mr. Mukherjee ld. counsel appearing on behalf of the opposite party no.2 submits that in the petition of complaint in para 3, it has been specially averred that the accused no.2/present petitioner was an active director of the accused no.1 /company and was responsible for the conduct of the day to day business of the accused no.1/company. In fact the petitioner acted as the negotiator between the parties for development of the land and the impugned cheque had been issued by the company in course of such negotiation and transaction. He further submits that although that words 'in charge of' is missing from the petition of complaint but the averments made in para 3 of the complaint read with para 10 of the present application is sufficient to implicate the present petitioner. He further argued that in any event the role in the entire transaction which has been played by the present petitioner can only be determined after adducing evidence and not to be determined ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is liable to be dismissed. 10. I have considered submissions made by both the parties. 11. At the outset it is to be made clear that since order relating to issuance of process under section 204 of the Cr.P.C. is the basis of asking the accused person to face the trial, the magistrate requires great exercise of judicial mind and not to act like a post office. He is not supposed to issue process without determining whether prima facie case exists or not and exercise of judicial mind is a sine qua non and the same cannot be surrogated to a mechanical process. 12. Before going to further details let me reproduce section 200 of the Code of criminal Procedure :- 200- Examination of complainant - A magistrate taking cognizance of an offence on complaint shall, examine upon oath the complainant and witnesses present, if any and the substance of such examination shall be reduced into writing and shall be signed by the complainant and witnesses and also by the magistrate. 13. Rule 89 (3) of the Calcutta High Court criminal (subordinate Courts) Rules 1985 reads as follow:- 89(3): The examination of the complainant and his witnesses shall not be taken to be a mere formality and they ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f this case. I have filed this case against accused m/S Leonine Estates Pvt. Ltd., Anil Bhutoria & Ghanashaym Das Sharma on behalf my company by a Board resolution by the Directors issued to me by my company on 16.12.13. I have filed my initial deposition u/s 200 Cr.P.C. by affidavit duly signed by me. I have submitted all the Xerox of the relevant documents and I shall file the original documents regarding the same at the time of evidence. Today I have brought the original documents in court. I am praying for relief as per my complaint against the said accused persons." 17. It further appears from the record that on the basis of said initial deposition the trial court had issued summons upon the three accused persons for committing offence punishable under section 138 of the N.I. Act, invoking his jurisdiction under section 204 of Cr.P.C. It would not be out of context to quote the relevant order dated 08.09.2005 which runs as follows:- "Today is fixed for S/A complainant is present along with his Ld. Advocate. Today complainant has filed initial deposition u/s 200 Cr.P.C. by affidavit today in court. The same accepted and kept with the record. Complainant also brought the ori ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... aint has to proceed. 19. On perusal of the allegation and counter allegation made before me, it is apparent that there are several disputed facts involved in the present proceeding in respect of the present complaint, for instance:- (a) The petitioner's specific case is that he was neither signatory nor was authorised to sign any cheque on behalf of the accused/ company, but he has been implicated. (b) It is also apparent from the averment made in the complaint that no specific role has been attributed against the present petitioner. (c) The petitioner's specific case is that he had resigned from the company on 5th November, 2013, which is also apparent from Form 32 and the cause of action of the present offence allegedly arose after 15 days from the receipt of the notice by the company on 6th November, 2013. (d) The opposite party in their affidavit in opposition stated that there were six directors of the complainant/company and therefore, the petitioners alleged that going against the settled law that there cannot be discrimination in the prosecution to pick and choose a particular accused person among other directors, he has been implicated. 20. In my considered view, ..... X X X X Extracts X X X X X X X X Extracts X X X X
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