Disposed

Suresh Kumar Somani v. Tushita Properties Pvt. Ltd.

Calcutta HC21 Mar 2022CRR/1762/2018

Case brief

AI extract

What is this about?

This revisional application concerned a cheque dishonour case where vicarious liability against the petitioner was challenged under Section 141 NI Act. The High Court, applying precedents, held that the complaint lacked specific averment regarding the petitioner's directorship at the relevant time. Consequently, the court ordered an inquiry under Section 202 CrPC to ascertain facts before deciding

What did the court decide?

Order under Section 202 CrPC made by the Metropolitan Magistrate, Calcutta, to inquire into the petitioner's position as Director at the relevant time before invoking Section 204 CrPC.

Suresh Kumar Somani Vs Tushita Properties Pvt. Ltd. — Cheque Dishonour | Calcutta HC (2022)

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D/L6 March 21, 2022 Bpg.

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CRR No.1762 of 2018 With

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CRAN 1 of 2019 (Old CRAN 2041 of 2019) With CRAN 2 of 2021

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In Re: An application under Section 482 of the Code of Criminal Procedure, 1973;

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Suresh Kumar Somani

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Versus Tushita Properties Private Limited

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Mr. Krishnendu Bhattacharya,

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Mr. Rajib Mullick,

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Mr. Priyankar Ganguly,

Ms. Sonia Mukhrjee,

Ms. Shalini Bairagi.

…for the petitioner.

Mr. Avik Ghatak,

Ms. Afreen Begum,

Mr. Sagnik Mukherjee. …for the opposite party.

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The present revisional application has been preferred by one of the accused in Complaint Case No.20404 of 2013 (corresponding to CS/0323539/2014) presently pending before the learned Metropolitan Magistrate, 15^th Court, Calcutta.

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The main thrust of the contention of the petitioner is that the paragraph 2 of the petition of complaint is the only foundation for implicating the petitioner as an accused in the present case. The said allegation/averment made in paragraph 2 is bereft of the detailed requirements regarding compliance of Section 141 of the Negotiable Instruments Act for holding a person being vicariously

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liable in alleged commission of offence under Section 138 of the Negotiable Instruments Act.

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Learned advocate for the petitioner has relied upon a decision in the case of S.M.S. Pharmaceuticals Ltd. Vs. Neeta Bhalla & Anr. reported in AIR 2005 SCC 3512 .

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On the other hand, Mr. Ghatak, learned advocate appearing for the complainant/opposite party has relied upon the judgments of the Hon’ble Supreme Court in K.K. Ahuja Vs. V.K. Vora & Anr. reported in (2009) 10 SCC 48 and A.K. Singhania Vs. Gujarat State Fertilizer Company Limited & Anr. reported in (2013) 16 SCC 630.

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The purpose of all these judgments which have been delivered by the Hon’ble Supreme Court was innocent persons or person who are not involved are unnecessarily not asked to take a criminal trial by invoking the provisions of Section 141 of the Negotiable Instruments Act.

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All the judgments referred to are on the issues of Section 141 of the Negotiable Instruments Act but there are thread line difference in all these judgments regarding the allegation or averment required for implicating a person or holding them vicariously responsible for facing the trial in a proceeding under Section 138 of the Negotiable Instruments Act. Primarily, I am of the view that there is a requirement for at least stating that person who is responsible or in-charge for the day-to-day conduct of the business of the company was also holding his office at the relevant point of time when the offence was committed. The part of the

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averment whether the person was holding the office at the time of commission of the offence is missing in paragraph 2 of the petition of complaint. However, a complaint can also be amended and the very purpose of a criminal court is to ascertain or unearth the truth.

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In view of the aforesaid, I am of the opinion that let an enquiry be conducted under Section 202 of the Code of Criminal Procedure to ascertain as to whether the present petitioner before this Court, namely, Suresh Kumar Somani, was a Director of the company at the time when the offence was committed, that is after the period of 15 days on receipt of the statutory notice.

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Let such enquiry in terms of Section 202 of the Code of Criminal Procedure be conducted by the authorities referred to in such Section under the direction of the learned Metropolitan Magistrate, 15^th Court, Calcutta. It would be at the discretion of the said authority to call for a document either only from the complainant or if required from the accused.

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Let the whole process of Section 202 Criminal Procedure Code be completed within a period of 60 days from the next date so fixed by the learned Metropolitan Magistrate, 15^th Court, Calcutta. Thereafter, the learned Magistrate would take a decision whether the provisions of Section 204 of the Code of Criminal Procedure are to be invoked so far as the present petitioner is concerned.

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With the aforesaid directions, CRR 1762 of 2018 is disposed of.

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Pending application, if any, is consequently disposed of. Interim order, if any, is hereby vacated.

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All parties shall act on the server copy of this order duly downloaded from the official website of this Court.

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(Tirthankar Ghosh, J.)

Suresh Kumar Somani v. Tushita Properties Pvt. Ltd.

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Suresh Kumar Somani v. Tushita Properties Pvt. Ltd.

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