- (1.) Judgment and order dated 17th July, 2012 passed in Criminal Revision No. 48 of 2012 passed by the Additional Sessions Judge, Fast Track, 5th Court, Calcutta affirming the order dated 2nd February, 2012 passed by the learned Metropolitan, Magistrate, Calcutta 16th Court, Calcutta in case No. 17483 of 2010 under section 138 of the Negotiable Instrument Act has been assailed. The allegation in the petition of complaint is to the effect that the dishonoured cheque in question was issued by accused No. 3, namely, M/s. Paramout Properties and Estate Development Limited. Upon dishonour, notice was issued but the amount of the cheque was not paid within the stipulated time, prima facie constituting an offence under section 138 of the Negotiable Instrument Act. It is further alleged that the said cheque had been issued in respect of a transaction entered into by and between the petitioners, that is, the accused Nos. 1 and 2 therein and the opposite party/complainant. Process was issued upon the petitioners as well as the accused No. 3 company under section 138 read with section 141 of the Negotiable Instruments Act. Such process was unsuccessfully assailed before the learned Sessions Judge. Hence, the present application has been filed. Mr. Bhattacharyya, learned counsel appearing for the petitioner submitted that section 138 of the Negotiable Instrument Act creates an offence of strict liability wherein the drawer of the cheque alone can be punished. Constructive liability in respect of such offence is specifically provided under section 141 thereof. He further submitted that none of the petitioners can be said to be persons who were in charge and responsible to the accused No. 3-company for the running of its day to day business at the time of commission of the offence. He, therefore, prayed that the proceeding to be quashed so far as the petitioners are concerned. He relied on a decision of P.J. Agro Tech Limited & Ors. v. Water Base Limited, 2010 12 SCC 146 and Mrs. Aparna A. Shah v. M/s. Sheth Developers Pvt. Ltd. & Anr., 2013 8 SCC 71.
(2.) Mr. Choudhury, appearing for the opposite party No. 2 submitted that the principle of constructive liability is not alien to the penal law. In fact, the petitioners' liability was sought to be liquidated by the issuance of cheque in question and hence the petitioners ought to held liable for prosecuted upon dishonour of such instrument. He relied on ICDS Ltd. v. Beena Shabeer, 2002 6 SCC 426.
(3.) The short point which, therefore, falls for decision is whether the petitioners whose liability is sought to be discharged by issuance of the cheque in question can be prosecuted on dishonour of such instalment under the provisions of section 138 read with section 141 of the Negotiable Instruments Act, 1881. Section 138 of the Act reads as follows: 138. Dishonour of cheque for insufficiency, etc., of funds in the account.-- Where any cheque drawn by a person on an account maintained by him with a banker for payment of any amount of money to another person from out of that account for the discharge, in whole or in part, of any debt or other liability, is returned by the Bank unpaid, either because of the amount of money standing to the credit of that account is insufficient to honour the cheque or that it exceeds the amount arranged to be paid from that account by an agreement made with that Bank, such person shall be deemed to have committed an offence and shall, without prejudice to any other provisions of this Act, be punished with imprisonment for (a term which may be extended to two years), or with fine which may extend to twice the amount of the cheque, or with both: Provided that nothing contained in this section shall apply unless-- (a) the cheque has been presented to the Bank within a period of six months from the date on which it is drawn or within the period of its validity, whichever is earlier; (b) the payee or the holder in due course of the cheque, as the case may be, makes a demand for the payment of the said amount of money by giving a notice in writing, to the drawer of the cheque (within 30 days) of the receipt of information by him from the Bank regarding the return of the cheque as unpaid; and (c) the drawer of such cheque fails to make the payment of the said amount of money to the payee or, as the case may be, to the holder in due course of the cheque, within 15 days of the receipt of the said notice.;