- (1.) In the instant application under section 482 Cr. PC the legality and propriety of criminal proceeding being Case No. C/2025 of 2006 under section 138/148 of the Negotiable Instruments Act now pending before the learned Metropolitan Magistrate, 13th Court, Calcutta has been challenged.
(2.) It is contended that the petitioner No. 1 is a registered company under the Companies Act, 1956 while the petitioner Nos. 2 and 3 were directors of the company. The petitioner No. 3, however, has resigned from the board of directors and shareholdership on 28.11.1996 which was duly communicated to the registrar of companies by filing Form No. 32 which was received by them on 10.12.1996. The Opposite Party No. 2 is also a company who has filed the above complaint being Case No. C/2025 of 2006 against the petitioner No. 1 company and Ors. alleging inter alia, that in discharge of existing legal debts and liabilities the accused person issued six cheques in favour of the Opposite Party No. 2 amounting to a total sum of Rs. 1,56,882/- only drawn on the Allahabad Bank, College Street Market, Kolkata on different dates namely, 01.07.2005, 01.08.2005, 01.09.2005, 01.10.2005, 01.11.2005 and 01.12.2005. While those cheques were presented for encashment through their banker UBI, Park Street Branch those were dishonoured with the remarks "Exceeds Arrangements" mentioned in banks memo dated 22.12.2005 and advise slip dated 23.12.2005. Accordingly demand notice dated 30.12.2005 was sent to the accused persons by speed post with A/D on 31.12.2005 asking for such payment within 15 days from the date of receipt of the notice. The said notice was served upon the accused Nos. 1, 3 and 4 on 02.01.2006. On receipt of such demand notice dated 31.12.2005 accused No. 1 by its letter dated 04.01.2006 intimated the Opposite Party No. 3 that Shri Bhanwar Lal Dave expired on 03.08.1995 and that the petitioner No. 4 also resigned from the directorship and shareholdership of the petitioner No. 1 company with effect from 28.11.2996 and as such not connected in any way with the alleged offence. Moreover, on 16.01.2006, i.e., within the notice period the petitioner No.1 company made payment of Rs. 1,04,588/-against the four dishonored cheques in the form of 4 demand drafts in lieu of 4 dishonoured cheques which were duly received by the petitioner No. 2 on 16.01.2006. In their letter dated 16.01.2006 the petitioner No. 1 company also sought for time for payment of balance amount of the 2 dishonoured cheques and ultimately on 01.03.2006 the petitioners made such payments by issuing two fresh cheques bearing No. 083060 dated 08.03.2006 for Rs. 26,147/- and cheque No. 083061 dated 15.03.2006 for Rs. 26,147/- in lieu of the remaining two dishonoured cheques. The said cheques were delivered to the Opposite Party No. 2 through their letter No. DRSI/37/2005-06 dated 01.03.2006 which were duly received and encashed. Thus the petitioner company paid the entire sum as demanded under the said demand notice but the opposite parties have filed the criminal case against them for non-payment of such amount which is not legally tenable.
(3.) Learned Lawyer for the opposite party on the contrary has contended that such belated payment after issue of demand notice and filing of the case cannot exonerate the petitioners herein from their criminal liability. At best the same conduct may be treated as a mitigating circumstance to be taken into account at the time of awarding sentence if the criminal proceeding ultimately culminates into a conviction. He has referred to and relied upon the following principles laid down in: i) (Rajneesh Aggarwal vs. Amit J. Bhalla, 2001 CalCriLR 235 ); ii) (State of M.P. vs. Awadh Kishore Gupta & Ors., 2004 SCC(Cri) 353); iii) (S. M. S. Pharmaceuticals Ltd. vs. Neeta Bhalla & Anr., 2005 SCC(Cri) 1975 ), iv) (Budhmal Bhansali @ B. Bhansali vs. The State of West Bengal & Anr., 2008 1 CalCriLR 486 ) and v) (Paresh P. Rajda vs. State of Maharashtra & Anr., 2008 3 SCC(Cri) 118);