- (1.) THE opposite party herein filed a complaint under Sections 138/141/142 of the Negotiable Instruments Act in the Court of the Additional Chief Judicial Magistrate at Sealdah, 24-Parganas. It seems that there was an agreement between the complainant company which is a Government of India undertaking and the accused persons who are a partnership firm, namely, The Associated Transport Company and its three partners for engaging the said firm as the warehouse and handling agent of the complainant company for storage and/or handling of fertilizer on hire commission basis. There was also an agreement, it seems, that the said firm would furnish security to the complainant company. It is the allegation in the petition of complaint that in accordance with the said agreement the accused persons furnished security by issuing certain cheques. The cheques were issued by the accused No. 2 on behalf of the accused no. 1 which is the firm. The cheques were drawn on India Bank, Khidderpore branch, Calcutta and the same were presented by the complainant for encashment at Park Circus Branch of the State Bank of India, Calcutta which duly presented the same to the Indian Bank, Khidderpore Branch, Calcutta. The cheques were however returned by the Drawer Bank on the ground of insufficiency of fund with a request to present against. On 27. 8. 1991 the cheques were again presented but they were against returned by the Drawer Bank with a note 'refer to drawer'. Then on 6. 9. 1991 a letter was issued by Solicitors on behalf of the complainant to the accused persons at their Burdwan address inter alia stating the fact that the cheques were dishonoured on presentation and demanding payment of the concerned amount within 15 days from the date of receipt of the letter. It was also stated therein that the same might be treated as notice under Section 138 of the negotiable Instruments Act. The allegation is that inspite of such demand by notice under Section 138 of the said Act no payment against the dishonoured cheques had been made by the accused persons. Accordingly, the complainant a company filed the petition of complaint through its Secretary and Principal Officer under sections 138/141/142 of the Negotiable Instruments Act in the Court of the Additional chief Judicial Magistrate, Sealdah and the learned Magistrate took cognizance on that complaint and transfered the same to the Judicial Magistrate 5th court, Sealdah for enquiry and trial. The learned Magistrate 5th Court thereafter examined the complainant and witness on oath, perused and considered the complaint along with the xerox annexures thereto as well as the evidence on oath and then recorded his opinion that prima facie case did exist against the accused persons under the said sections of the Negotiable Instruments Act and directed for issuing summons to the accused persons. The accused persons who are petitioners herein have now come up in this court for quashing the said proceeding under section 482 of the Code of Criminal Procedure.
(2.) THERE contentions have been canvassed by Mr. S. C. Bose on behalf of the petitioners. The first contention is that the petition of complaint does not disclose any cause of action against the petitioners Nos. 3 and 4 Mahamaya Laha and debi Prosad Laha who are partners of the firm, the petitioner No. 1 (Associated transport Company ). The second contention is that the Sealdah Court of magistrate has no territorial jurisdiction to entertain the complaint or to try the case. The third contention is that the direction of the learned Magistrate for issuing summons to the petitioners is bad inasmuch as the relevant provisions of law were not complied with.
(3.) AS regards the first contention that the petition of complaint does not disclose any cause of action against the petitioners No. 3 and 4, I find that there is substance in the same and Mr. B. C. Roy appearing for the complainant opposite party in his usual fairness conceded the validity of the contention raised by Mr. Bose regarding non-disclosure of any cause of action against the petitioners Nos. 3 and 4. The cheques in question were issued by the accused No. 2 (who is also a partner of the firm) on behalf of the firm, the accused No. 1. Under Section 141 of the Negotiable Instruments Act, 1881 where an offence under Section 138 has been committed by a company or firm, every person who, at the time the offence was committed, was in charge of, and was responsible to, the company or the firm for the conduct of its business as well as the company or the firm, as the case may be, becomes liable to be proceeded against and punished. Where an offence under the Act is committed by a company or a firm, the Director of the company or the partner of the firm is also liable to be proceeded against and punished if it is proved that the offence has been committed with the consent or connivance of, or is attributable to, any neglect on the part of such Directorr or partner, as the case may be. The petition of complaint in the present case does not contain any such averment against the petitioners Nos. 3 and 4 as could prima facie make out a case against them under Section 141 of the said Act. That being so the proceeding in the court below as far as accused petitioners Nos. 3 and 4 are concerned must be quashed.;