JUDGMENT
P.N. Sinha, J.
1. As the factual aspects and points of law involved in these revisional applications are identical I intend to dispose of these three revisional applications by this common judgment and Order.
2. Before I enter into merits of the revisional applications, it would be fruitful to mention the facts of the case as disclosed in the petition of complaint filed by the opposite party M/s. Hindusthan Development Corporation Limited in the Court of the learned Chief Metropolitan Magistrate (CMM), Calcutta which was transferred to the Court of the learned Metropolitan Magistrate, 17th Court, Calcutta. In the petition of’ complaint the complainant arrayed nine accused persons out of which accused No. 1 is the company namely CRB Capital Markets Limited. Mr. Shubh Karan Jain was arrayed as accused No. 3 and Mr. Fateh Chand Bhansali was arrayed as accused No. 4 and Mrs. Manjula Bhansali was arrayed as accused No. 5 and the last three abovenamed accused persons as petitioners have preferred the present revisional applications bearing Nos. 10717 99, 1001/99 and 1103/99 respectively for quashing of the criminal proceeding against them.
3. The factual matrix as disclosed in the petition of complaint, in short, is that accused No. 1 is a limited company and Rajib Mankuria is the Manager -Accountant and Administration and constituted attorney of complainant company. Complainant company had given short term loan to accused No. 1 company for a total sum of Rs. 10.00 crores by way of demand draft of Rs. 5.00 crores on 14.7.95, further sum of Rs. 3.00 crores by way of demand draft on 25.7.95, further sum of Rs. 2.00 crores by demand draft on 2.8.95 on mutually agreed condition to repay Rs. 5.00 crores on 12.7.96 and balance sum of Rs. 5.00 crores on 18.7.96 and the said loan would carry interest @ 20% p.a. on quarterly rests. When the offence was committed the accused Nos. 2 and 3 were the Chairman and Vice-Chairman respectively of accused No. 1 and both were in charge of day-to-day conduct of business affairs, the administration and running of accused No. 1 company. Accused No. 4 is the father of accused No, 2 and father-in-law of accused No. 5 and was in charge of the day-to-day conduct of business affairs, administration and running of accused No. 1 and was responsible to accused No. 1 for the day-to-day conduct of the business. Accused Nos. 5 to 9 were all Directors of the said accused No. 1 company and at all material times when the offence was committed they were also in charge of the day-to-day conduct of the business affairs of accused No. 1 and were responsible to accused No. 1 for the day-to-day conduct of business of accused No. 1. As per agreed terms accused No. 1 had issued to the complainant two demand promissory notes dated 3rd July, 1995 and 19th July, 1995 for Rs. 5.00 crores each which were duly signed by accused No. 2 and accused No. 5 while they acted for and on behalf of accused No. 1. Accused No. 1 also issued and handed over 33 account payee cheques to the complainant at its registered office at Calcutta drawn on Canara Bank, Sarat Bose Road, Calcutta in due discharge of the liabilities for payment of principal amount along with interest. Accused No. 1 also approached by letter dated 13.7.96 signed by accused No. 2 addressed to the complainant for extension of time of payment of said loan which were due namely Rs. 5.00 crores for a further period of six months to be due on 12th January, 1997 and balance Rs. 5.00 crores for a further period of three months to be due on 18.10.96. Once again accused No. 1 issued two demand promissory notes dated 18.7.96 and 19.7.96 signed by accused No. 2 and accused No. 5 on behalf of accused No. 1 promising to pay said sum of Rs. 10.00 crores on demand with agreed interest. The accused No. 1 issued and handed over eight account payee cheques to complainant at its registered office at Calcutta drawn on Canara Bank, Sarat Bose Road in discharge of liability. On 31.3.97 accused No. 1 also issued and handed over to complainant at its office at Calcutta five account payee cheques drawn on Canara Bank, Sarat Bose Road as per the details given below :
S.No. Date Cheque No. Amount 1. 31.03.97 984168 9,37,625.00 2. 31.03.97 984178 37,28,690.00 3. 31.03.97 984179 43,91,928.00 4. 31.03.97 984159 5,00,00,000.00 5. 31.03.97 984160 5,00,00,000.00
4. The cheques as per serial Nos. 1 and 2 bearing No. 984168 and 984178 for Rs. 9,37,625.00 and Rs. 37,28,690.00 respectively were towards balance payment of interest due on 31st March, 1997. Cheque of serial No. 3 bearing No. 984179 for Rs. 43,91,928.00 towards TDS on interest upto 31.3.97 and cheques of serial Nos. 4 and 5 bearing No. 984159 and 984160 for Rs. 5.00 crores each towards repayment of aggregate principal amount of Rs. 10.00 crores. All the cheques issued by accused No. 1 were handed over at the office of complainant at Calcutta in due discharge of liability. The above cheques were signed by accused No. 5 for and on behalf of accused No. 1 company. The complainant deposited the said cheque of serial No. 2 bearing No. 984178 for Rs. 37,28,690.00 with its banker Punjab National Bank, New Market Branch for collection of the proceeds. Complainant’s bank send the cheque to the banker of accused at Canara Bank, Sarat Bose Road, Calcutta and the cheque was dishonoured and returned back with mark “fund insufficient” vide return memo dated 17.4.97. The complainant in due course through its Advocates and Solicitors M/s. Khaitan & Co. sent demand notice dated 25.4.97 to accused persons under registered post with A/D, by hand and by courier demanding payment of said sum of Rs. 37,28,690.00 to the complainant within fifteen days. The accused persons did not pay the said sum of money or any part thereof to the complainant in spite of receipt of the demand notice on 26.4.97 by hand at Calcutta Office, and on 28.4.97 by hand at registered office at Delhi and corporate office at Bombay and on 29.4.97 and 30.4.97 through registered post with acknowledgement due on the said Delhi and Bombay offices. Accordingly, the complainant lodged complaint against accused No. 1 company and other accused persons for offences under Sections 138 and 141 of the Negotiable Instruments Act fin short NI Act).
5. Mr. Sudipto Moitra, learned Senior Advocate appearing for the petitioners along with Mr. Jyotirmoy Adhikary and Mr. Sanjay Bose submitted that the averments of petition of complaint is peculiar as in paragraph 10 of the complaint it was mentioned that the complainant sent demand notice dated 25.4.97 to the accused persons under registered post with A/D, by hand and by courier and the accused persons duly received the notice on 26.4.97 by hand at Calcutta office and on 28.4.97 by hand at the registered office at Delhi and corporate office at Bombay and on 29.4.97 and 30.4.97 through registered post with acknowledgement due. The registered notice sent to the accused persons demanding money for the dishonoured cheque were not served upon the petitioners. The contention of the complainant opposite party that notice was served by hand was a novel method of service of notice which was unheard of. There is nothing to show who received the notice which was served by band. The service of notice must be by registered post as required under Section 138 of the NI Act to prove service of notice. If the provisions of Section 94 of the NI Act and provisions of Section 27 of the General Clauses Act are construed properly, it will indicate that in a proceeding under Section 138 of the NI Act notice must be served upon the accused by registered post. Service of notice by hand is illegal and not permissible in law. The petition of complaint is liable to be quashed on this score only.
6. Mr. Biplab Mitra, learned Senior Advocate appearing for the complainant opposite party along with Mr. Debabrata Acharyya and Mr. S.B. Sinha Roy submitted that Annexure B of the revisional application which is an application filed by the petitioners before the learned Trial Court with a prayer for dismissal of complaint under Section 203 of Cr. PC made it clear that they received the notice and that is why by filing an application before the learned Court they submitted prayer for dismissing the complaint. In that application they did not specifically deny receipt of the notice. Notice was sent by three modes namely, registered notice which was directed at office, notice by courier and notice by hand. Section 94 of the NI Act makes it clear that notice may be even oral. Section 138 of the NI Act does not prescribe that demand notice must be served by registered post and any other mode of service is invalid and illegal in the eye of law. Service of notice is a matter of fact which can be proved by adducing evidence only at the time of trial. The complaint cannot be dismissed at the early stage of the case on the ground of non-service of notice. In support of his contention Mr. Mitra cited the decision in V. Raja Kumari v. P. Subbarama Naidu and Anr., reported in 2004 C Cr. LR (SC) 1161.
7. I have duly considered the submissions made by the learned Advocates of the parties and perused the revisional applications and materials on record. Regarding mode and manner of service of notice in a proceeding under Section 138 of the NI Act it would be fruitful to quote Section 94 of the said Act which runs as follows:
“Mode in which notice may be given.–Notice of dishonour may be given to a duly authorised agent of the person to whom it is required to be given, or where he has died, to his legal representative, or, where he has been declared an insolvent, to his assignee; may be oral or written; may, if written, be sent by post; and may be in any form; but it must inform the party to whom it is given, either in express terms or by reasonable intendment, that the instrument has been dishonoured, and in what way, and that he will be held liable thereon; and it must be given within a reasonable time after dishonour, at the place of business or (in case such party has no place of business) at the residence of the party for whom it is intended.
If the notice is duly directed and sent by post and miscarries, such miscarriage does not render the notice invalid.”
8. I lay emphasis on the words “may be oral” mentioned in Section 94 of the NI Act. Interpretation of Section 94 of the Act read with Section 138 of the Act would reveal that demand notice may be even by oral. It is not necessary that demand notice must be issued by registered post. Failure of the complaint to serve demand notice by registered post would not invalidate the complaint at the threshold. Service of notice is a matter of fact which depends upon proving the said fact in the trial on the basis of evidence. In this connection, the decision cited by the learned Advocate for the opposite party namely V. Raja Kumari (supra) is very important. The Supreme Court observed that, “No doubt Section 138 of the Act does not require that the notice should be given only by ‘post’. Nonetheless the principle incorporated in Section 27 (quoted above) can profitably be imported in a case where the sender has despatched the notice by post with the correct address written on it. Then it can be deemed to have been served on the sendee unless he proves that it was not really served and that he was not responsible for such non-service. Any other interpretation can lead to a very tenous position as the drawer of the cheque who is liable to pay the amount would resort to the strategy of subterfuge by successfully avoiding the notice.” In the decision the Supreme Court also indicated that the object of notice is to give a chance to the drawer of the cheque to rectify his omission and also to protect an honest drawer. Service of notice of demand in clause (b) of proviso to Section 138 is a condition precedent for filing a complaint under Section 138 of the NI Act. Whether the notice was served or not and how it was served and which service was effected on the accused persons namely, whether by registered post, or by hand, or by courier, is a matter which can be considered during trial as the scheme of the Act unmistakably imposes burden on the complainant to show service of demand notice upon the accused persons. It is a matter which is to be considered at the time of trial on the basis of facts of each case. This cannot be a ground to reject the complaint at the very initial stage or at threshold. In the trial the burden would be on complainant to prove service of demand notice upon the accused persons and this cannot be a ground for quashing the complaint at the very early stage where appearance of all accused persons are not yet complete and question of recording evidence is far cry.
9. The next point of attack of the present complaint by Mr. Moitra is concerning suppression of material fact in the FIR. Mr., Moitra submitted that the complainant in the petition of complaint suppressed the fact that the Delhi High Court in C. A. No. 1453 of 98 along with C. A. No. 28 of 98, C. A. No. 1380 of 98, C. A. No. 180 of 98, C.A. No. 626 of 98 and C. A. No. 627 of 98 stayed all the criminal proceedings initiated under Section 138 of the NI Act. ‘Not only that, the Reserve Bank of India freezed all accounts of the accused petitioners company. The Reserve Bank of India under its powers in view of provisions of Section 45MB(2) of the Reserve Bank of India Act, passed an Order restraining the accused No. 1 company from selling, alienating, creating charge or mortgaging or dealing in any manner with the property or assets of the company without prior permission of the Reserve Bank of India for a period of six months from the date of the said Order. Thereafter Reserve Bank of India directed freezing of the accounts of the company in all Nationalised Banks. As the Delhi High Court stayed all the criminal proceedings initiated under Section 138 of the NI Act and the Reserve Bank of India freezed the accounts of accused No. 1 company, the continuation of the criminal proceeding against the petitioners are bad in law. The complainant in spite of knowing of the stay Order granted by the Delhi High Court and the Order of Reserve Bank of India freezing all accounts of accused No. 1 company, did not mention the said facts in the petition of complaint and suppressed material fact before the Court and obtained Order of issue of process against the petitioner. Learned Magistrate would not have issued process if he was not kept in the dark by the complainant due to such suppression. As the petitioners suppressed material fact the criminal proceeding is liable to be quashed.
10. Per contra, Mr. Biplab Mitra for the opposite party submitted that the Delhi High Court granted stay of proceeding against the company only, but not against others. Continuation of proceeding against the Directors of the company is maintainable and pendency of proceeding of winding up of company cannot be a bar to lodge criminal case against the Directors for dishonour of the cheque. The Reserve Bank of India restrained the accused company only relating to disposal of assets and depleting assets. The legal obligation, debt, salary of employees, payment of lawful consideration etc. were not restrained by the Reserve Bank of India nor those were stopped. Mr. Mitra further submitted that same prayers by the accused company and its Directors were discussed by this Court in another revisional application being CRR No. 1245/99. The same point relating to Reserve Bank of India’s restraint Order was discussed by this Court and it has been decided against the petitioners. Law of estoppel arises in such a situation. In support of his contention Mr. Mitra cited the decisions in Prudential Capital Mkt. Ltd. and Anr. v. State of Bihar and Ors., reported in 2001 SCC (Cri) 644, Santosh Saha v. State, reported in 1973(2) ILR Cal 173, Manipur Administration, Manipur v. Bira Singh, , Pankaj Mehra and Anr. v. State of Maharashtra and Ors., reported in AIR 2000 SC 1953 : 2000 SCC(Cri) 556, Anil Hada v. Indian Acrylic Ltd., reported in 2000 Cr. LJ 373.
11. After duly considering the submissions of the learned Advocates of the parties I am of opinion that the submissions made by the learned Advocates for the petitioners are not acceptable. It is evident that the prohibition was issued by the Reserve Bank of India in exercise of power given under Sections 45K(4) and 45MB(1) of the Reserve Bank of India Act. These Sections are concerned mainly with accepting any deposit. The term ‘deposit’ has been defined under Section 45-I(bb) of the RBI Act and this Section specifically excludes amount received by a company from any other company as loan and definition ‘deposit’ does not include inter-corporate deposit. The Reserve Bank of India by Order dated 9.4.97 restrained the accused company from disposing of its assets and depleting the assets of the company. There was no restraint Order prohibiting the company to pay its legal obligations, debts, salaries of the employees and so on. Therefore, the argument that Reserve Bank of India freezed all accounts of accused company is not at all a ground to quash the complaint against the petitioners. Order of Reserve Bank of India cannot operate as a ban to lodge criminal proceeding against petitioners for alleged offence under Section 138 of the NI Act. Moreover, it would be a question of fact which can be decided on the basis of evidence in the Trial Court whether default on the part of accused No. 1 company and its Directors in paying the amount of the dishonoured cheque to the holder of the cheque had occurred because of overriding supervening event namely, the Order of the Reserve Bank of India restraining the petitioner company and its Directors from making payment by disbursing funds or disposing of its properties. This point can be decided on the basis of cogent oral and documentary evidence at the time of trial. The decision of the Supreme Court in Prudential Capital Mkt. Limited (supra) makes it clear that bar under Sections 45QA and 58E of the RBI Act applies only to offence committed under the RBI Act and the Reserve Banks directions under the said Sections cannot be a bar to a criminal proceeding for the alleged offence under Sections 420, 120B of IPC as well as Section 138 of the NI Act. Similarly, in the present case the restriction of the Reserve Bank of India under Sections 45K(4) and 45MB(2) cannot be a bar to a criminal proceeding under Section 138 of the NI Act against accused company and its Directors.
12. The Order of the Delhi High Court clearly reveals that the Delhi High Court in a proceeding for winding up of the company directed that during pendency of the company proceedings it would be but fair if the criminal proceedings initiated under Section 138 of the Negotiable Instruments Act against the company only are stayed. It is made clear that stay pertains to prosecution against company only. It establishes that Delhi High Court stayed the proceeding against the company only, but not against the officers who are respnsible for the day to day affair of the company or against the Directors of the company. In Anil Hada(supra) the Supreme Court pronounced that when a company, which committed the offence under Section 138 eludes from being prosecuted thereof, on account of complaint against it being dropped because of winding up proceeding Ordered by Court, the Directors of that company can be prosecuted for that offence. The same view was reiterated by the Supreme Court in Pankaj Mehra(supra) where it went further and observed that merely because petition for winding up of the company has been presented prior to the company being called upon by a notice to pay the amount of the cheque, the company cannot escape from penal liability under Section 138 of the Negotiable Instruments Act. Therefore, application filed for winding up of the company cannot save the company and its Directors from penal liability under Section 138 of the NI Act. The learned Magistrate would definitely consider about Order of the Delhi High Court regarding stay of the criminal proceeding against the company. The present petitioners were the Directors and were the persons responsible for the day-to-day account of the company and as such they cannot escape from penal liability under Section 138 of the NI Act.
13. In this connection I like to mention that when in an earlier revisional application being CRR No. 1245 of 1999 between the same parties the same points viz, Order of Reserve Bank of India and Order of Delhi High Court in company matter has been decided, the Rule of estoppel would be applicable. Judicial propriety and justice demands that the petitioners should be estopped from raising the issue once again as there is no scope for any further clarification regarding the earlier points over which there was no appeal in any higher Court and decision of this Court reached finality. There may not be application of res judicata like Civil Procedure Code but, there must be limit of raising same points repeatedly in different revisional applications through different set of applicants. In this connection the decisions cited by the learned Advocate for the O.P. namely Santosh Saha(supra).and Manipur Administration, Manipur (supra) are very much relevant.
14. Mr. Sudipto Moitra for the petitioners further submitted that the cheques were for payment of interest and out of the five cheques two cheques were for principal and three were for payment of interest. Payment of interest does not attract elements of Sections 138 and 141 of the NI Act as payment of interest does not come within the purview of discharge of any liability. He further submitted that it was not stated in complaint how the present petitioners are responsible for day-to-day account of the company. They resigned from the company and form 32 of the Companies Act, 1956 were submitted before the Registrar of Companies. The fact of their resignation were also published in the leading daily newspapers. The petitioners had no vicarious liability in this matter. There was no averment against the petitioners relating to the alleged commission of offence nor, the complaint shows any specific part played by them relating to day-to-day account of the company. The complaint is totally silent regarding factual aspects against the petitioners. The magic words used in Sections 138 and 141 of the N.I. Act would not automatically make the petitioners liable for the offence. Criminal liability is not attracted by signing cheque. There cannot be any complaint against sleeping partners of a company. The learned Magistrate without applying judicial mind issued process which was illegal. In support of his contention he cited the decisions in Veteran Company Pvt. Ltd. and Anr. v. State and Ors., reported in 2003(4) CHN 525, Goa Plast (P) Ltd. v. Chico Ursula D’Souza, reported in 2004 C Cr. LR (SO 113, Monaben Ketanbhai Shah and Anr. v. State of Gujarat and Ors., reported in 2004 SCC (Cri) 1857 : 2004(2) CLJ (SC) 215, Modern Denim Limited and Ors. v. Lucas TVS Limited, reported in 2001 Company Cases (Volume 105) 194, KGP Nair v. Jindal Menthol India Ltd. reported in JT 2000 (Suppl.) SC 519, J. Th. Zwart and Ors. v. Indrani Mukherjee, reported in 1990(1) CHN 62 and Shanku Concretes Pvt. Ltd. and Ors. v. State of Gujarat and Anr., reported in 2000 Cr. L.J. 1988.
15. Mr. Biplab Mitra for the complainant-opposite party submitted that there was sufficient disclosure of factual aspects against petitioners. Complaint discloses sufficient materials against the petitioners and paragraphs 4, 5 and 6 of the complaint reveals the parts played by the present petitioners. Order dated 6.5.99 was not challenged which reached its finality. The petitioners have challenged Order dated 9.3.99 by which warrant of arrest were issued against the petitioners. The learned Magistrate rejected the prayer of the petitioners for dismissing complaint by Order dated 6.5.99 but, strange the petitioners did not challenge the said Order. On the other hand, they have challenged an earlier Order dated 9.3.99 in which learned Magistrate issued warrant of arrest against them. The Court may direct the learned Magistrate to consider representation of the petitioners under Section 205 of Cr. P.C. considering the fact that the petitioners are residents of Bombay. There is no ground at all to quash the impugned criminal proceeding and all the re visional applications should be dismissed. In support of his contention he cited the decisions in Anil Hada(supra) and Monaben Ketanbhai Shah and Anr.(supra). Mr. Mitra further submitted that at this stage this Court cannot look into the papers and documents annexed with the revisional application as those were neither tested nor verified. The said papers and documents can be considered by the Criminal Court in trial. In support of his contention he cited the decision in State of M.P. v. Awadh Kishore Gupta and Ors., reported in 2004 SCC (Cri) 353.
16. Citation of decisions do not always favour the party who is relying on such decisions unless the facts and circumstances of the reported decisions are matching with the facts and circumstances of the case, which is under consideration before the Court and also the points of law involved are identical. It is true that dishonour of the cheque itself does not make out any penal provision. Penal provision under Section 138 of the NI Act would arise only when after demand made by the complainant or holder of the cheque for payment of the dishonoured cheque, the accused or drawer of the cheque fails to make payment within the time of fifteen days, It is also equally well-established that all partners of a company are not responsible for the alleged offence under Sections 138 and 141 of the NI Act. Only the persons or the officers of the company who were in charge of the company and responsible to the firm can be fastened with criminal liability. It is also well-settled that the sleeping partners particularly, the lady accused persons, who do not take any part in the day-today account or discharge of business of the firm or company cannot be prosecuted. There is no need of detailed discussion of the decisions cited by the learned Advocate for the petitioners as well as by the learned Advocate for the opposite party. At the same time it is also now settled that when a company which committed the offence under Section 138 eludes from being prosecuted thereof, on account of complaint against it being dropped because of winding up proceeding Ordered by the Court, the Directors of that company can be prosecuted for that offence. In Anil Hada(supra) the Supreme Court observed that, “The effect of reading Section 141 is that when the company is the drawer of the cheque such company is the principal offender under Section 138 of the Act and the remaining persons are made offenders by virtue of the legal fiction created by the legislature as per the Section. Hence the actual offence should have been committed by the company, and then alone the other two categories of persons can also become liable for the offence.”
17. In the said decision the Supreme Court also observed that, “Three categories of persons can be discerned from the said provisions who are brought within the purview of the penal liability through the legal fiction envisaged in the Section. They are: (1) The company which committed the offence, (2) Everyone who was incharge of, and was responsible for, the business of the company, (3) 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 the offence.” The proposition of law thus makes 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. In the present case in the petition of complaint it was clearly stated that accused Nos. 2 and 3 were the Chairman and Vice-Chairman of the accused No. 1 company and accused No. 4, the father of accused No, 2 and father-in-law of accused No. 5 and all of them were in charge of the day-to-day conduct of the business affairs, the administration and running of accused No. 1 and were responsible to accused No. 1 company for day-to-day conduct of the business of the company. It was also categorically mentioned in the complaint that the cheque were drawn by accused No. 1 company and was signed by accused No. 5. Accused Nos. 4 and 5 were the Directors of accused No. l company at the material time. It is clear, therefore, that petition of complaint contains sufficient materials showing involvement of these three petitioners in day-to-day affairs of the company, and not only that, accused No. 5 Mrs. Manju Bhansali signed the cheque in question. The complaint is not totally silent regarding the parts played by these petitioners. On the other hand, complaint discloses that the petitioners were Vice-Chairman and Directors respectively of the accused No. 1 company and were responsible to the accused No. 1 company for the day-today conduct of business of the company. Accordingly, it cannot be accepted that the complaint was vague and did not contain any averment against the petitioners or that there was only bald statement against the petitioners. In the trial only it can be determined on appreciation of evidence what was the nature of work, responsibility and duty of these three petitioners in the day-today affairs of the company.
18. The Supreme Court in Monaben Ketanbhai Shah(supra) observed that, Section 138 of the Act makes dishonour of the cheque an offence punishable with imprisonment or fine or both. Section 141 relates to offences by the company. It provides that if the person committing an offence under Section 138 is a company, every person who, at the time the offence was committed, was in charge of, and was responsible to, the company for the conduct of the business of the company, as well as the company, shall be deemed to be guilty of the offence and shall be liable to be proceeded against and punished accordingly. Thus, vicarious liability has been fastened on those who are in charge of, and responsible to, the company for the conduct of its business. For the purpose of Section 141, a firm comes within the ambit of a company.
19. It is not necessary to reproduce the language of Section 141 verbatim in the complaint since the complaint is required to be read as a whole. If the substance of the allegations made in the complaint fulfil the requirements of Section 141, the complaint has to proceed and is required to be tried with. It is also true that in construing a complaint a hypertechnical approach should not be adopted so as to quash the same. The laudable object of preventing bouncing of cheques and sustaining the credibility of commercial transactions resulting in enactment of Sections 138 and 141 has to be borne in mind. The principles as laid down by the Supreme Court make it clear that the complaint must contain the requirements of Section 141 and then only the criminal proceeding can be proceeded with and also tried with. In the instant case, the requirements as laid down in the above decision has prima facie been established from the averments of complaint against the present petitioners.
20. Whether the cheque was for the interest or it was in the discharge of liability or not, is a matter of fact which can be decided on the basis of evidence. What was the intention of the parties that can be gathered from evidence in the trial. At this stage, the presumption under Section 139 of the NI Act is in favour of the holder of the cheque and the accused petitioners can rebut such presumption by adducing evidence of rebuttal. Without trial these matters cannot be ascertained as intention of the parties and other factual aspects are matters of fact which cannot be decided by this Court and can be decided only by Trial Court. It is also a matter which can be decided in the Trial Court whether there was any debt or liability and whether in the discharge of any such debt or liability the cheque was given by the drawer to the holder of the cheque and whether it was legally enforceable or not.
21. It is also equally settled that this Court at this stage cannot look into the papers and documents annexed with the revisional application as those were neither verified nor tested. Therefore, the question whether the petitioners resigned from the company and submitted Form 32 under the Companies Act, and thereby in no way responsible in this matter are all questions which can be decided in the trial. There is no need of discussion of any decision or authority of law in this respect but, the decision of State of M.P. v. Awadh Kishore Gupta(supra) is an authority regarding permissibility of this Court to look into the papers and documents annexed with the revisional application. The story of petitioners that they resigned from the company by submitting Form 32 and are in no way responsible for the alleged offence is a defence of accused petitioners. The defence or alibi of accused is a matter for consideration in the trial on the basis of evidence which cannot be decided by this Court.
22. In a proceeding under Section 482 of the Cr. PC this Court would interfere only in rarest of rare cases. It is well-settled that power of quashing a criminal proceeding should be exercised very sparingly and with circumspection and that too in the rarest of rare cases. Considering the entire facts and circumstances as it transpired before this Court in these revisional applications, there is no ground sufficient enough to invoke inherent power or jurisdiction of this Court under Section 482 of Cr. PC to quash the criminal proceeding against the petitioners. It is equally settled that this Court at this stage cannot assess evidence like a Trial Court or Appellate Court.
23. In view of the discussions made above, there is no merit in these revisional applications and all the revisional applications being CRR 1001/99, CRR 1071/ 99 and CRR 1103/99 stand dismissed. When a Magistrate after perusing complaint and after examining complainant under Section 200 of Cr. PC issued process under Section 204 of Cr. PC applying proper judicial mind in this case, no question of interference by this Court arises in the said Order. At the time of issuing process a Magistrate is not expected to hear any accused nor is empowered to look into defence papers and documents.
24. It appears that the learned Magistrate issued warrant of arrest against the petitioners though the petitioners did not challenge the said Order. The petitioners have challenged the Order by which the learned Magistrate rejected their prayer for dismissing the complaint. In view of the aforesaid discussion there is no ground to interfere with the Order of the learned Magistrate and the learned Metropolitan Magistrate rightly rejected the prayer of the petitioners for dismissing the complaint against them. However, considering the fact that the petitioners are residents of Mumbai and one of them is a lady, it would be difficult for them to attend the Court of the learned Magistrate at Calcutta, and that too, in a proceeding under Section 138 of the NI Act, for the ends of justice, it is desirable that the petitioners should be permitted to be represented under Section 205 of Cr. PC by their authorised Advocate. Accordingly, I direct that the warrant of arrest that has been issued against the petitioners be stayed for three months from date during which the petitioners will present proper applications separately under Section 205 of Cr. PC before the learned Metropolitan Magistrate giving usual written undertaking which are required in such matter. If the applications under Section 205 of Cr. PC are presented before the learned Metropolitan Magistrate within time granted by the Court with written undertaking, the learned Metropolitan Magistrate would take a lenient view and would permit the petitioners to be represented through their authorised advocate under Section 205 of Cr. PC imposing usual conditions as required and also would recall the warrant of arrest. If the petitioners fail to comply with this direction, the learned Magistrate will be at liberty to take appropriate action against these three accused petitioners in accordance with law.
25. As it is a case of 1999 and several years have lapsed in the meantime, learned Metropolitan Magistrate is directed to proceed with the trial as expeditiously as possible and to conclude the same at the earliest without granting any undue adjournment to either of the parties.
26. I make it clear that I have not entered into the merits of the main case and the observations made by this Court in this matter are observations only for the purpose of the revisional applications and the learned Magistrate will be at liberty to act in accordance with law on the basis of evidence and materials on record without being influenced in any way by the observations of this Court.
27. This Order will govern all the three revisional applications bearing Nos. CRR 1001/99, CRR 1071/99 and CRR 1103/99.
28. All the Rules issued in connection with these revisional applications are hereby discharged.
29. Interim Order of stay passed earlier in all the three revisional applications stand vacated.
30. Criminal Section is directed to send the Lower Court Record along with a copy of this Order to the learned Metropolitan Magistrate, 17th Court, Calcutta for information and necessary action.
31. Urgent xerox certified copy be given to the parties, if applied for, expeditiously.