JUDGMENT
Sailendra Prasad Talukdar, J.
1. Petitioners by filing an application under Section 482 of the Code of Criminal Procedure sought for quashing of the proceedings in case No. C-1917/06 now pending before the learned Court of Chief Metropolitan Magistrate, Calcutta under Section 138/141 of the Negotiable Instruments Act.
2. The backdrop of the present case may briefly be stated as follows:
Opposite Party No. 2 as complainant filed an application under Section 138/141 of the Negotiable Instruments Act before the learned Court of CMM, Calcutta against the present petitioners and others.
3. Learned CMM, Calcutta by order dated 4th of March, 2006 took cognizance and thereafter by order dated 28th March, 2006 being prima facie satisfied on perusal of the petition of the complaint, affidavit and documents directed issuance of summons for the offences under Section 138/141 of the NI Act upon all the accused persons.
4. Allegations made in the said petition of complaint may briefly be stated as follows:
5. Complainant is a private limited company, which was jointly engaged as a consultant by the two companies being accused No. 1 and No. 9. by entering into an agreement. Accused Nos. 2 to 8 are the principal officers and Director of accused No. 1 and are responsible for the day to day functioning of it. Accused Nos. 10-12 are the principal officers being the Chairman and the Managing Director, Director (Finance) and Director (Technical) respectively of the accused No. 9 and are responsible for the day to day functioning of the said company.
6. Complainant acted as a consultant to provide comprehensive technology consultancy services to accused No. 1 and accused No. 9 in connection with the project of the National Highway Authorities of India. An agreement in this regard was entered into on 15th October, 2004 by and between the accused and the complainant through their respective authorized signatories. Complainant completed the said job which was accepted without objection and a works sign off agreement was also entered into by and between the complainant and the accused through their respective authorized signatories. Against such professional services rendered by the complainant and in partial discharge of the existing liability, an Account Payee cheque No. 258735 dated 31.12.05 drawn on ICICI Bank Ltd. for Rs. 11,15,000 only was issued in favour of the complainant with the assurance that the same would be encashed on presentation to the bank. It was accordingly presented within its validity period, with Canara Bank, Chowringhee Branch, Calcutta for encashment. It was returned unpaid vide cheque return memo dated 6.1.06 wherein reason of such dishonour as stated was “payment stopped by the drawer”.
7. Complainant through its lawyer issued notice dated 19.1.06 to all the accused persons. The same was sent by speed post. Accused were asked to arrange payment within 15 days of receipt of the notice. All the accused were duly served with the notice and accused No. 1 and 9 received the same on 20.1.06 and 23.1.06 respectively. In spite of receipt of the same the accused did not make any payment but raised the false and frivolous pleas to dispute the same by sending reply in writing.
8. It was, thus, alleged that the accused committed offences punishable under Section 138/141 of the NI Act.
9. The instant application under Section 482 of the Cr.PC had been filed by accused 9, 10, 11 and 12 praying for quashing of the said proceedings against them.
10. The petitioners claimed that petitioner No. 1 is a government company under the provisions of Section 619 of the Companies Act, 1956 and petitioner No. 2 is its Chairman-cum-Managing Director. Petitioners No. 3 and 4 are Director (Finance) and Director (Technical) respectively. Petitioner No. 1 entered into a joint venture agreement with M/s. Maheswari Brothers Ltd. (hereinafter referred to as M/s. M.B. Ltd.) for execution of road project awarded by National Highway Authority of India. There had never been any agreement between the petitioner and the O.P. No. 2 company. Till receipt of notice, the present petitioners were not even aware of the existence of the O.P. No. 2 company. A common reply to the said notice dated 19.1.06 was sent by the petitioner on 28.1.06 and O.P. No. 2 was thus duly intimated that the said cheque did not pertain to any bank account of the petitioner No. 1 company or joint account opened between the petitioners No. 1 company and said M/s. M.B, Ltd. Petitioner got the matter clarified by necessary interaction with the representatives of the M/s. M.B. Ltd. Petitioner had no privity of contract with the said M/s. M.B. Ltd. singly of jointly with it or other accused persons. This was further confirmed by the said M/s. M.B. Ltd. in the letter dated 24.1.06 to the petitioner No. 1.
11. Thus, the petitioners have been falsely implicated in this case by O.P. No. 1 with an ulterior motive. Allegations made in the petition of complaint being accepted in their entirety do not make out any case against the petitioners. The petitioners are neither the payee nor the holder in course of the alleged cheque. The dishonored cheque was issued by the said M/s. M.B. Ltd. since the authorized signatory signed over the words “for Maheswari Bros. Ltd.” The account in which the said cheque is drawn does not contain the name of petitioner No. 1 company as an account holder. The said M/s. M.B. Ltd. filed a suit before the High Court impleading the said O.P. No. 2 as defendants/respondent No. 2 and an injunction application had also been filed in the said suit. Petitioners categorically denied to have ever engaged either independently or jointly with M/s. M.B. Ltd. the O.P. No. 2 as a consultant.
12. Quashing of the proceedings against the present petitioners was thus sought for.
13. Learned Counsel for the petitioner submitted that this is a case where no legally recoverable debt or liability exists in favour of the O.P. No. 2 as against the petitioners.
14. True, no hard and fast rule can be laid down for exercise of the extraordinary jurisdiction under Section 482 of the Code of Criminal Procedure. This Court cannot assume the role of a Trial Court and embark upon an enquiry as to reliability of evidence and sustainability of accusation on a reasonable appreciation of such evidence.
15. In the case of Zandu Pharmaceutical Works Ltd. and Anr. v. Mohd. Sharaful Haque and Anr. as , the Apex Court held that if on consideration of the allegations in the light of the statement made on oath of the complainant it appears that the ingredients of the offence or offences are disclosed and there is no material to show that the complaint is mala fide, frivolous or vexatious, the proceedings cannot be quashed. But what it appears to the contrary, interference by the High Court would be justified.
16. It was submitted by the learned Counsel for the petitioner that the petitioner are not the drawers of the alleged cheque and so, no question could arise for arranging for sufficient amount in their account to get the cheque honoured or to instruct the bank to stop payment of the cheque, as alleged. The cheque under reference was not in connection with any account maintained by the petitioners. It was emphatically submitted that the petitioners being ‘third party’ cannot be dragged into such a proceeding. In this context he referred to the decisions as reported in (2000) 2 SCC page 745; 11(1999) BC 172; (2001) 3 SCC 726 and (2001) 3 SCC 609.
17. On the other hand, learned Counsel for the O.P. No. 2 submitted that the grievance of the petitioners as ventilated is premature and cannot be entertained. Inviting attention of the Court to the allegations made in the petition of complaint, it was submitted that O.P. No. 2 acted as a consultant to provide comprehensive technology consultancy services to the joint venture of the accused No. 1 company (accused No. 9 in the petition) and the petitioner No. 1 and the cheque had been issued towards part discharge of the liability arising out of the said service provided by the O.P. No. 2. It was contended that the letter reportedly received from the ICICI bank or the letter dated 24.1.06 allegedly issued by M/s. M.B. Ltd., as sought to have been relied upon by the petitioners cannot be now considered as this Court at this stage in response to an application under Section 482 of the Code of Criminal Procedure cannot look beyond the petition of complaint and should not traverse beyond what was available for consideration before the learned Trial Court. Those documents cannot be said to be of such starling quality that no proof is required thereof to enable this Court to take judicial notice therein. This can only be brought before the Court at the time of leading evidence by the defence or by placing the same before the witnesses for the prosecution.
18. It was contended that the basic premise of the case of the complainant is the existence of a joint venture between the petitioner No. 1 company and the accused No. 1 company to whom, O.P. No. 2 had provided consultancy services, thereby giving rise to the liability on the part of the joint venture. Learned Counsel for the O.P. No. 2 then submitted that disputed questions of fact as raised in the application under Section 482 of the Code of Criminal Procedure, cannot be adjudicated upon at this stage. It was mentioned that acceptance of the stand of the present petitioners would amount to entertaining a counter case, which attempts to strike the case before the learned Magistrate at its root and would scuttle the said proceeding at its very inception. It was further submitted that the cheque by one partner of the joint venture can very well be issued in discharge of the legal liability of the joint venture and so, it cannot be said that there was no existence of any legal debt or liability.
19. How far the allegation could constitute a foundation for action in terms of Section 138/141 of the NI Act is no doubt a matter for adjudication at the trial (Ref: 2005 Cr. LJ 2566). No doubt, it is the settled position of law that the Court should not assume the role of a Trial Court and embark upon an enquiry as to the reliability of the evidence and sustainability of the accusation on a reasonable appreciation of such evidence [Ref: 2002 SCC (Cri) 539)].
20. In the case of Dhanalakshmi v. R. Prasanna Kumara and Ors. as reported in 1991 SCC (Cri) 142, the Apex Court observed that the complaint has to be read as a whole. If it appears on consideration of the allegations, in the light of the statement on oath of the complainant that ingredients of the offences are disclosed, and there is no material to show that the complaint is mala fide, frivolous or vexatious, in that event there would be no justification for interference by the High Court. It is also settled position of law that annexures to the petition cannot be termed as evidence without being tested and proved and so, those could not be acted upon [Ref: 2004 SCC (Cri) 353].
21. There is no doubt that this Court’s power under Section 482 of the Cr. PC for quashing of a proceeding can only be exercised in rarest of the rare case. It is required to be seen whether or not continuation of the proceeding will amount to abuse of the process of Court.
22. What emerges from the materials on record is that a cheque issued by M/s. M.B. Ltd. was returned on instruction of ‘stop payment’. By no stretch of imagination this could give an opportunity to the present petitioners to take necessary follow-up measure in respect of such returned cheque. There is statutory mandate that a notice must be issued before initiation of a criminal proceeding under the NI Act. The purpose for issuance of such mandatory notice is simple and the message is clear. It gives an opportunity to the person or authority to take necessary steps so that the aggrieved party is not compelled to seek redress before a Court of law. Here in the present case, the cheque under reference was returned to M/s. M.B. Ltd. and there could be absolutely no scope for the present petitioners to do anything in that regard. It is the categorical stand of the present petitioners that they had nothing to do with O.P. No. 2 or that, there had been no privity of contract between them and the said O.P. No. 2 or that the cheque under reference was neither issued by them nor the same was issued in discharge of any legal debt or liability. On careful scrutiny of the petition of complaint which was filed before the learned Court of Magistrate it can be easily gathered that certain things have conveniently been left vague. The extent of involvement of the present petitioner cannot be gathered on careful consideration of the said petition of complaint. Certain aspects relating to the relationship of the O.P. No. 2 and the present petitioners perhaps have been purposely left unexplained. The inherent vagueness may reflect competent drafting but it cannot substitute the factual details which alone could enable the learned Magistrate to apply its judicial mind for the purpose of proceeding further. The petition of complaint cannot afford anything to be left to imagination.
23. Considering all these aspects it appears that the present petitioners had practically no role to play and they had perhaps been implicated with the intention to put more pressure upon the actual offender.
24. Our administration of criminal justice does not permit anyone to use law in a manner which can remotely put a person or authority into unnecessary inconvenience. It cannot be an instrument for harassment, nor for exploitation. Our administration of justice demands that right means must be employed to achieve right ends. ‘Ends justify the means’ is an approach not permissible in our legal system. Having regard to all such facts and circumstances I find it difficult to brush aside the grievances as ventilated on behalf of the petitioners.
25. In my considered opinion, the present petitioners had been unreasonably implicated in the case under reference and continuation of the proceeding against them in such facts and circumstances would certainly amount to abuse all the process of Court. This Court cannot afford to remain passive onlooker to such attempt to cause harassment. Thus, the present application being CRR 1967/106 be allowed The criminal proceeding being C-1917/06 now pending before the learned Court of CMM, Calcutta under Section 138/141 of the NI Act be quashed as against the present petitioners and the interim order which was earlier issued is hereby made absolute to the said extent. The learned Trial Court, however, must proceed with the said case as against other accused persons as expeditiously as possible. The present petitioners if on bail stand discharged from the bail-bonds.
26. Criminal department is directed to give xerox certified copy to the parties as expeditiously as possible after due compliance with the legal formalities.