AVIJIT BHATTACHARJEE Vs. STATE OF ASSAM
LAWS(GAU)-2018-5-233
HIGH COURT OF GAUHATI
Decided on May 07,2018

Avijit Bhattacharjee Appellant
VERSUS
STATE OF ASSAM Respondents

JUDGEMENT

Ajit Borthakur, J. - (1.) By this petition under Section 482 Cr.P.C., 1973 the petitioner has prayed for setting aside and quashing C. R. Case No. 384C/ 2012 under Sections 138/141 of the Negotiable Instruments Act, 1881 (for short, 'N.I. Act') pending in the Court of learned Judicial Magistrate, 1st Class, Kamrup (M) at Guwahati and the order, dated 16.02.2012, passed therein, whereby cognizance has been taken under the aforesaid provisions of the N.I. Act against the petitioner, who is arrayed as an accused.
(2.) The petitioner's case, in a nutshell, is that on 18.10.2011, he owned 35% of the shares of the Shree Krishna Paper Mills Pvt. Ltd., West Bengal, which is a company, registered under the Companies Act, 1956 and thus, became one of the Directors of the Company. The petitioner sold his entire holding of shares of the company to a number of other companies and thereby his interest in the Company ceased and eventually, the petitioner resigned from the post of Director of the Company on 30.06.2012 vide agreement executed on 25.06.201 Under the agreement, all rights and liabilities of the petitioner, in connection with the Company ceased and vested with the purchasers of the shares. The petitioner, during the short period of holding the post of Director, had no active participation in the affairs of the Company, more particularly, in the matter of financial transactions. However, the respondent No. 2 filed a complaint case, under Sections 138/141 of the N.I. Act in the Court of learned Chief Judicial Magistrate, Kamrup (M), Guwahati, where he was arrayed as one of the accused persons, alleging that the Cheque No. 115148, dated 09.10.2011, issued in his favour by the said company, amounting to Rs. 6,85,000/-, was dishonoured due to 'insufficient fund'. Thereafter, the respondent No. 2 issued a demand notice as required under section 138 of the N.I. Act, but despite receipt of the notice, the cheque amount was not paid. The said complaint was registered as C.R. Case No. 384C/2012 and having made over the case for disposal, the learned Judicial Magistrate, 1st Class, Kamrup (M), Guwahati, took cognizance of the offence vide the impugned order, dated 16.0201 Accordingly, the petitioner entered his appearance in the case. The petitioner has contended that in the complaint case, the complainant/ respondent No. 2 made no allegation that the petitioner had any direct involvement or any specific role in the commission of the alleged offence and as such, the petitioner is not liable to be prosecuted for the said offence of the N.I. Act.
(3.) The complainant/ respondent No. 2 contested the petition contending, inter-alia, that the petitioner was one of the Directors of the Company owning 70% shares and as such, he is personally as well as vicariously liable for all kinds of acts and transactions made by and on behalf of the said Company. It has been further contended that the petitioner was the Director of the Company at the time of, the cheque in question was presented at the State Bank of India, Beltola Branch, Guwahati, on 20.12.2011 for encashment and dishonouring of the same on 21.12.2011, respectively. It has been further contended that despite receipt of the demand notice, the petitioner as Director of the Company did not make arrangement to pay the cheque amount and hence, the petitioner cannot absolve his liability and responsibility to make good of the payment under the Cheque, which occurred during his tenure as Director of the Company. It is, therefore, payed to dismiss the petition.;


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