IN THE HIGH COURT OF JUDICATURE AT PATNA Cr.Misc. No.24602 of 2005 Samir Mukherjee @ Sameer Murkrjee S/o Sakti Pada Mukherjee, resident of RR-272, ABL Town ship, Durgapur-713206, P.S. M.A.M.C., Durgapur, District-Bardhawan, West Bengal (Presently Resident at D 34 , Sahityik , N.G. Path, Bidhannagar Nagar, Sector- 2A, Durgapur -12) ----------------------- Petitioner Versus 1. THE STATE OF BIHAR 2. Manoranjan Kumar Singh S/O Sri Girija Nand Singh, resident of 4G Flate No.1/6, Hanuman Nagar, P.S. Patrakar Nagar, Patna ------------------- Opp.Parties. ----------- For the petitioner : Mr. Krishna Mohan Mishra, Advocate For the State : Mr.Jharkhandi Upadhaya, A.P.P. For Opp.Party no.2 : Mr. Shaishav Kumar, Advocate -------------- O R D E R The sole named accused of Complaint Case No.1636 ( C) of 2004 has prayed for the quashing of the order dated 4.9.2004 passed therein by Sri Sudhir Kumar Sinha, Judicial Magistrate, First Class, Patna, whereby he has taken cognizance against the petitioner for offences under Sections 406 and 418 I.P.C. as also Section 138 of the Negotiable Instruments Act ( hereinafter referred to as “ the N.I.Act”) One Manoranjan Kumar Singh,impleaded herein as Opp.Party no.2 , filed the aforesaid Complaint on 17.7.2004 inter alia alleging the commission of offences under Sections 406 and 420 I.P.C. as also Section 138 N.I.Act by the accused petitioner from 22.5.2004 onwards . According to the complainant, he was introduced to the accused by his cousin, Om Prakash Singh, residing in Durgapur . The accused introducing himself as business associate of Ajit Singh - 2 - & Co. ( hereinafter referred to as “ the Company”) with his sweet talk induced the complainant to invest some money in the company on the plea that for an investment of Rs.1,90,000/- for some period he would get a return of Rs.2,30,000/- . Accordingly, the complainant in good faith invested a sum of Rs.1, 90,000/- during the end of 2003 but following the investment the complainant felt being ignored by the Company whereupon with the help of his cousin , Om Prakash Singh, he persuaded the accused to return the amount invested by him. Accordingly, Cheque No.193691 dated 2.5.2004 for Rs.1,00,000/- and Cheque No.193692 for Rs.1,20,000/- drawn on Central Bank of India, Mamrabazar, Durgapur Branch, signed by the accused were issued in favour of the complainant. It is alleged that the cheques on presentation were dishonoured by the said Bank due to insufficient funds and were returned on 22.5.2004 to the complainant’s Bank who in turn informed the complainant. It is said that a legal notice dated 19.6.2004 was sent to the accused demanding the money and not to cheat him. In reply the accused requested the complainant not to present the cheques for encashment for some period. The complainant apprehending being cheated was compelled to file the complaint. Assailing the impugned order it has been submitted on behalf of the petitioner that it would be apparent from perusal of complaint petition that the petitioner as well as the complainant was a member of the partnership firm, namely, M/S Ajit Enterprises, situated at 14, R.I.P. Industrial Estate, Durgapur . This does not appear to be the correct position since nowhere is it stated in the complaint - 3 - petition that the complainant had been inducted as a partner in the partnership firm. On the contrary, the claim of the complainant is that he had invested a sum of Rs.1, 90,000/- and it is nowhere the complainant’s case that he was a partner in the partnership firm or in the Company. Even the documents filed by the petitioner in this application do not reveal the complainant to be a partner in the Firm/Company. It has further been submitted on behalf of the petitioner that Ajit Singh , the other partner, having fallen ill with the dreaded disease of Cancer was admitted to hospital and died in the year,2004 and resultant of the illness of Ajit Singh , business operation of the Company had been stopped and when the complainant came to know about the state of affairs of the business of the Company, he requested for refund of the capital amount of Rs.1,90,000/- invested by him. Initially, it is said, the petitioner refused to pay the amount, whereupon the complainant requested that since the money invested belonged to his father, therefore, only for his mental satisfaction, cheques should be issued by him. It is further submitted that in satisfying the request of the complainant, two cheques were issued in the name of the complainant on the sole condition that the said cheques would not be presented in the Bank since the liability to pay the said amount, if any, is upon the firm and not on the petitioner. Nevertheless, notwithstanding having given assurances the complainant came to Patna and deposited the said cheques in his Bank for encashment which admittedly were - 4 - dishonoured due to insufficient balance. Assailing the enquiry under Section 202 Cr.P.C. and the materials arising therein it was submitted that none of the witnesses, who have deposed in favour of the complainant at the enquiry, were present at the time or occasion when the money was allegedly given by the complainant to the petitioner and they have only stated of having heard about it, and as such, their statements were those of hearsay witnesses and could not have any relevancy value. It was further submitted that it would appear from the materials on record that the complainant had not given any loan nor any kind of liability was due against the petitioner, rather the complainant had made investment in the firm as capital and, hence, no offence as alleged in the complaint petition can be said to have been made out against the petitioner. It was further submitted that no offence either under Section 406 and 418 I.P.C. is made out against the petitioner since the petitioner had not criminally breached any trust, since no entrustment had been made to him, which he had coveted to his own use or disposed of in violation of any direction of law. As regards the offence under Section 418 I.P.C. it was submitted that the same is not applicable since none of the witnesses of the complainant had stated about the complainant having been cheated by the petitioner. Admittedly, as per the complainant’s own statement he had invested the money in the Company, but curiously the Company has not been impleaded as a party respondent. It is true that a person would be vicariously liable for commission of an offence on the part - 5 - of the Company, but only in the event that the condition precedent laid down therefor in Section 141 N.I.Act stands satisfied and for the said purpose a strict construction would be necessary. It is not the complainant’s case that the accused petitioner was either the Director, Manager, Secretary or other officer of the Company and had issued the cheques in question in that capacity . It is also not the complainant’s case that the cheques had been issued on behalf of the Company. In Sabitha Ramamurthy Vrs. R.B.S. Channbasavaradhya , reported in 2006 AIR SCW 4582= 2006 (9) Scale 212 , it was observed that Section 141 N.I.Act raises a legal fiction, by which a person although he is not personally liable for commission of such an offence would be vicariously liable therefor, but for the same, there is requirement of some averments in the complaint petition to make the accused therein vicariously liable for the offence committed by the Company. Due regard being had to the facts and circumstances of the case and the discussions made above, the prosecution of the petitioner would amount to an abuse of the process of the court and the same cannot be sustained in law. Accordingly, the application is allowed and the impugned order is quashed. ( Abhijit Sinha, J ) Patna High Court,Patna Dated : the 21st July,2009 Nawal Kishore Singh/ A.F.R.