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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 ..... sued two cheques being no. 087316 and 087317 both dated 20.7.2013. When the complainant placed the said two cheques to his banker for encashment, it were dishonored on the ground of "exceeds arrangement". The said complainant/company thereafter issued statutory demand notice on 1st November 2013 and the accused person inspite of receipt of the said notice, failed to pay the amount mentioned in the cheque and as such the present proceeding has been initiated on the ground of dishonor of cheques. 2. Mr. Banerjee, learned senior counsel appearing on behalf of the petitioner submits that the petitioner herein resigned from both the companies on 5.11.2013. He further submits that although petitioner was appointed as a director but he was neither a signatory nor was ever authorized to sign to any cheque on behalf of the company. He further submits no notice of the meeting of the Board of Director of the company was ever served upon the petitioner. Infact he had himself invested huge sum of money in the said company and he yet to get returns on his investments. 3. He further submits that in the complaint it has only been mentioned that the accused no. 1 mentioned in para 3 of the compla ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... onsibility as a director even under vicarious capacity when the alleged offence was committed. He further contended that from the complaint it is clear that there was 6 (six) directors of the accused/company but it appears that complainant company had filed the case against the present petitioner and one Mr. Ghanashyam Das Sharma out of said six directors. Accordingly the complainant has made a biased attempt to prosecute the petitioner maliciously, which is reflected from his picking and choosing of an accused which is impermissible in law. He further contended that the said act of complainant in picking and choosing accused had been deprecated by the Apex Court in Sital Sahay Case reported in (2009) 8 SCC 617. 5. He further contended that the order of taking cognizance by the Magistrate which forms the basis of the proceeding has been acted herein in a mechanical manner. In fact the order of taking cognizance by the Magistrate concerned shows complete non application of mind, as he did not make any inquiry under section 202 of Cr.P.C. recording his satisfaction regarding truth or falsity of the allegation, far less the process how the satisfaction was arrived at. In the instant ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d that under section 168(2) of the Companies Act, the director even if retired can still be held responsible for the offence which occurred during his tenure. He also contended that it would be wrong interpretation of law, if it is said that the said provision of section 168 (2) is applicable only in case of offence committed under the Companies Act. 9. Mr. Mukherjee also distinguished the judgments relied by the petitioner being CRR 975 of 2017 (Salin Khemani and others Vs. State of West Bengal and another) contending that the facts pleaded in the petition of complaint in the said proceeding lacked the basic averments that the accused is in the charge of and responsible for the day to day conduct of the business of the company at the time of commission of offence. But in the present context a conjoint reading of para 3 of the complaint read with para 10 with the Revisional Application, it suitably demonstrate the role of the present petitioner in the entire transaction. Accordingly he submits that this is not a fit case where the proceeding can be quashed invoking jurisdiction under section 482 of the Code and as such the petitioner's prayer for quashment is liable to be dismisse ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... oth oral and documentary in support thereof to come to a finding as to whether the complainant has been succeeded in bringing charge of the accused. 15. In this context it is also required to be mentioned that section 202 of the Cr.P.C. specifically provides that when the magistrate received the complaint of an offence of which he is authorized to take cognizance may also postpone the issue of the process against the accused in appropriate cases and either enquire into the case himself or direct an investigation. Now since no particular form of inquiry has been prescribed in section 202, the Magistrate can very well make the inquiry by putting relevant questions to the complainant's witnesses to come to a conclusion whether there are sufficient grounds to proceed against the accused or not. 16. Coming back to the case in hand, I find that the complainant himself appeared before the court during initial deposition and he filed an affidavit disclosing the summary of what he has stated in the written complaint and thereafter oath was administered to him by the court below on 8th September, 2015, when he made the following statement. "I am the complainant of this case. I have filed ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o be guilty of the offence and in the present context in the averments made in the complaint, the words 'in charge of' as required under section 141 of the N.I. Act is missing from the petition of complaint and in respect of which the learned counsel strenuously argued that the petition of complaint is not maintainable. However it is settled law that reproduction of section 141 in verbatim in the complaint is not necessary, if the substance of the allegations made in the complaint fulfils requirements of section 141 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 (Monaben Ketanbhai Shah & Another Vs. State of Gujarat and Others, reported in (2004) 7 SCC 15). Accordingly, even if verbatim reproduction of the language of section 141 is missing either in the complaint or in the initial deposition, but if it is distinct that the allegations made in the complaint and corroborated by initial deposition fulfils the condition that the concerned accused was in charge of and was responsible to the company for the conduct of the business of the company, the complaint has to proceed. 19. ..... X X X X Extracts X X X X X X X X Extracts X X X X
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