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NON-REPORTABLE IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO. 213 OF 2006

Mannalal Chamaria & Anr. ....Appellants

Versus

State of West Bengal and Anr.              ...Respondents

WITH

CRIMINAL APPEAL NO. 215 OF 2006

AND

CRIMINAL APPEAL NO. 217 OF 2006

J U D G M E N T

Madan B. Lokur, J.

1. The  question  arising  for  consideration  in  these  appeals  

relates             to the alleged failure (and consequential effect) of  

Pradip  Sarkar  to  specifically  state  in  his  complaint  filed  under  

Sections 138 and 141             of the Negotiable Instruments Act,  

1881 that the                  appellants/accused persons were in  

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charge of and responsible for           the conduct of the business of   

M/s. Heritage Herbs Ltd. of which            they were said to be  

Directors.

2. In  a  complaint  filed  on  31st March,  2001,  Pradip  Sarkar  

alleged that  Heritage  Herbs   had made an  offer  for  collecting  

money from the market with a view to allot land to the intending  

investors.   On the basis of the offer made, Pradip Sarkar invested  

an  amount  of  Rs.1,50,000/-  and  Heritage  Herbs   issued  three  

receipt-cum-allotment  letters  for  three  plots  of  land  to  Pradip  

Sarkar.   At the time of handing over the receipt-cum-allotment  

letters, Pradip Sarkar was also handed over three cheques of Rs.  

61,000/- each  post dated to 29th October, 2000.  These cheques  

were issued by Heritage Herbs and were signed by Raj  Kumar  

Chamaria as Chairman of the said concern.

3. All the three cheques were deposited by Pradip Sarkar but  

were dishonoured by the concerned bank.  This led Pradip Sarkar  

to take steps to issue a notice to and initiate proceedings against  

Heritage Herbs  and Raj Kumar Chamaria under the provisions of  

Section 138 read with Section 141 of the Negotiable Instruments  

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Act, 1881.

4. During  the  pendency  of  the  proceedings  Raj  Kumar  

Chamaria died on 10th December, 2003.

5. Thereafter,  Pradip  Sarkar  moved  an  application  for  

impleading the appellants as accused persons.  The application  

was  allowed  and  the  appellants  were  impleaded  as  accused  

persons by the concerned Magistrate by an order dated 28th April,  

2004 and summons issued to them.

6. Feeling  aggrieved  by  their  impleadment  and  summons  

issued  to  them,  the  appellants  preferred  Criminal  Revision  

Petitions  in  the  Calcutta  High  Court,  which  dismissed  the  

petitions.  

7. The appellants  have challenged the  order  of  the  Calcutta  

High  Court  and  the  only  contention  urged  is  that  no  specific  

allegations were made against them either in the complaint as  

originally filed on 31st March, 2001 or in the amended complaint  

filed on 28th April 2004.

8. We have been taken through both the complaints by learned  

counsel  for  the appellants  and find that  there is  no  allegation  

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worth the name against  any of  the appellants  in  either  of  the  

complaints.   Insofar  as  the  first  complaint  is  concerned,  the  

appellants were not even made parties and therefore there is no  

question  of  any  allegations  being  made  against  them  in  that  

complaint.  As far as the second complaint is concerned, the only  

allegation made is to be found in paragraph 6 thereof which reads  

as follows:-   

“That in this context your petitioner refers to the  provisions  of  Section  141  of  the  Negotiable  Instrument  Act,  where  it  has  been  specifically  stated that  if  the offender  is  the company then  the person who at  the time of  the offence was  committed was in charge of and was responsible  to the company for the conduct of the business of  the company, other Directors, Manager, Secretary  or other officers of the company shall be guilty of  the offence, unless the persons referred to above  prove otherwise, as per the saving clause of the  said section.  In section 5 of the Companies Act,  also  made  those  officers  responsible  for  crime  committed by the company.”

9. The law on the subject is now very well-settled by a series of  

decisions rendered by this Court and it is not necessary to repeat  

the views expressed time and again.  Suffice it to say, that the  

law has once again been stated in  A.K.Singhania vs. Gujarat  

State Fertilizer Company Ltd.1 to the effect that it is necessary  

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for  a  complainant  to  state  in  the  complaint  that  the  person  

accused was in charge of and responsible for the conduct of the  

business of the company. Although, no particular form for making  

such an allegation is prescribed, and it may not be necessary to  

reproduce  the  language  of  Section  138  of  the  Negotiable  

Instruments  Act,  1881,  but  a  reading  of  the  complaint  should  

show  that  the  substance  of  the  accusation  discloses  that  the  

accused person was in charge of and responsible for the conduct  

of the business of the company at the relevant time.  From the  

averment made in the complaint, which is reproduced above, it  

can safely  be said  that  there is  no specific  or  even a  general  

allegation made against the appellants.

10. Under  these  circumstances,  the  complaint  against  the  

appellants deserves dismissal.  A contrary view taken by the High  

Court cannot be accepted.  Accordingly, the appeals are allowed  

and the order passed by the High Court is set aside.

         ……………………………………J              (Ranjana Prakash Desai)

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            ……………………………………J              (Madan B. Lokur)

New Delhi; March 25, 2014

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