1 2025:CGHC:6303 NAFR HIGH COURT OF CHHATTISGARH AT BILASPUR CRMP No. 2568 of 2018 1. Jigar Patel S/o Rameshchandra Dahyabhai Patel Aged About 40 Years Oriental Nicco Projects Pvt. Ltd. It Lagoon, 12th Floor, 1203- 4, Plot E2-2/1, Block-Ep And Gp, Sector - V, Kolkata - 7900091., District : Kolkata, West Bengal. 2. Arunava Roy S/o Late Indra Kumar Roy Aged About 66 Years Oriental Nicco Projects Pvt Ltd. It Lagoon, 12th Floor, 1203-4, Plot E2-2/1, Block -Ep And Gp, Sector -V, Kolkata - 7900091., District : Kolkata, West Bengal. 3. Amitabh Das S/o Late Subodh Kumar Das Aged About 52 Years Oriental Nicco Projects Pvt. Ltd. It Lagoon, 12th Floor, 1203-4, Plot E2-2/1, Block -Ep And Gp, Sector - V, Kolkata - 7900091., District : Kolkata, West Bengal. 4. Oriental Nicco Projects Pvt. Ltd. Represented By Mr. Suman Ranjan Panda, Working As Engineer Plot No. 1-2, Model Town, Nehru Nagar (East) Bhilai, Bhilai - 490021, Chhattisgarh. (Accused) ... Petitioner(s) versus Sanjay Goswami S/o Late S.K. Goswami Aged About 60 Years Managing Director, Pratibha Flowcon Engineering Pvt. Ltd. 72-A, Industrial Estate, Bhilai - 490026, Chhattisgarh. (Complainant), Chhattisgarh ... Respondent(s) For Petitioner(s) : Mr. Gary Mukhopadhyay, Advocate For Respondent(s) : Mr. Jaydeep Singh Yadav, Advocate RAHUL DEWANGAN Digitally signed by RAHUL DEWANGAN Date: 2025.02.10 19:24:47 +0530 2 Hon'ble Mr. Ramesh Sinha, Chief Justice Order on Board 04.02.2025 1. Heard Mr. Gary Mukhopadhyay, learned counsel, appearing for petitioners as well as Mr. Jaydeep Singh Yadav, learned counsel appearing for respondent. 2. The present petition has been filed by the petitioners under Section 482 Cr.P.C. for quashing the impugned order dated 05.07.2017 in the Complaint Case No. 5020/2017 passed by learned JMFC, Durg, (C.G.) whereby the learned JMFC registered Complaint Case under Section 138 of the Negotiable Instrument Act against the petitioners and issued arrest warrant to the them vide orders dated 28.05.2018 and 10.08.2018 respectively. 3. Facts of the case are in brief, that the respondent filed a complaint U/s 138 of the Negotiable Instrument Act, alleging that Oriental Nicco Projects Pvt. Ltd has issued four cheques concerning A/c No. 400030110000082, Bank of India, Kolkata Branch, Kolkata, West Bengal bearing Cheque No. 067380 for Rs. 7,71,994/-, Cheque No. 067381 for Rs. 3,81,254/- dated 28.12.2016 & Cheque No. 067382 for Rs. 2,36,672/- and Cheque No. 067383 for Rs. 8,71,922/- dated 31.12.2016. The Respondent has further submitted that, these cheques were issued to discharge monetary liability to Pratibha Flowcon Engineering Pvt Ltd. Further case of the respondent in his complaint case that, Cheque No. 067380 and Cheque No. 067381 dated 28.12.2016 were presented for encasement in their bank on 3 27/03/2017 which were returned dishonoured with an intimation "Payment Stopped by Drawer". Similarly Cheque No. 067382 and Cheque No. 067383 dated 31.12.2016 were presented for encasement in their bank on 29/03/2017 which were returned dishonoured with an intimation "Payment Stopped by Drawer". It is alleged in the complaint that the complainant issued legal notice through his advocate on 24/04/2017 for payment of the amount mentioned in the cheque. It was further alleged in the complaint that despite dispatch of the notice the same were returned as "Unclaimed" and "InsufÏcient Address". The complainant has claimed that inspite of service the petitioner herein has not discharged their liability and thus he filed Complaint Case u/s 138 before the JMFC, Durg. Considering the allegations made in complaint and the statement of complainant the learned Court of JMFC, Durg registered the offence under section 138 of Negotiable Instrument Act and notices were issued to the petitioners vide order dated 05/07/2017. 4. It is most humbly and respectfully submitted at this stage that the entire exercise made by the respondent/complainant is an abuse of process of law where on false, fabricated and distorted facts the complaint has been filed and statement on oath before the learned lower court was made for which even the respondent is liable for criminal prosecution. It is respectfully submitted that the petitioners are Directors/ OfÏcers of M/s Oriental Nicco Projects Pvt Ltd engaged in business of Engineering, Procurement & Construction (EPC) and is a Company incorporated under the Companies Act, 4 1956 having its registered ofÏce at Oriental House, SVK Road, Law Garden, Ellisbridge, Ahmedbad - 380 006, Gujarat and its at IT head Lagoon, 12th Floor, 1203-4, Plot - E 2-2/1, Block - EP & GP, Sector V. Kolkata - 700 091. Petitioner No. 1 is the 'Executive Director' of M/s Oriental Nicco Projects Pvt Ltd who is based at its registered ofÏce at Ahmedabad, Gujarat and not associated with it day to day affairs of its business at Kolkata. As per the terms of agreement the Respondent No. 1/ Complainant was supposed to supply those materials for setting up 3.0 MTPA Integrated Steel Plant at Nagarnar, Chhattisgarh. The Oriental Nicco Projects Pvt Ltd/Petitioners had issued four post dated cheques as a consideration for supply of Technological Structures to be made by the Respondent No. 1/Complainant. It is submitted that, Respondent No. 1/ Complainant raised bills time to time. It is further submitted that in discharge of the monetary liability, Oriental Nicco Projects Pvt Ltd had already transferred Rs. 22,61,842/- on 23.12.2016 through NEFT in the account of Pratibha Flowcon Engineering Pvt Ltd which was much prior to the Post Dated Cheque date. On 26.12.2016, Oriental Nicco Projects Pvt Ltd informed The Senior Manager, Bank of India, Kolkata Main Branch to make stop payments as Oriental Nicco Projects Pvt Ltd had already paid the same through NEFT. It was shocking that, the Respondent No. 1/ Complainant with ulterior motives and with a view of wrongful gain had submitted the postdated security cheques for encashment just before the last date of validity. The Respondent No.1/ Complainant filed a false Criminal complaint case under 5 section 138 of Negotiable Instrument Act by getting four post dated security cheques dishonored which was submitted to them at the time of work order as per the terms of agreement, alleging in the complaint that the same is given for discharge of debt. It is worthy to mention that the submissions of the Petitioner are not frivolous as the same is evident from the Bank Statement/ Transaction Report generated in connection with NEFT much prior to the date given in PDC. 5. Learned counsel for the petitioners submits that the learned trial court was misled by the respondent No. 1/Complainant to believe that there were dishonor of cheques within the purview of section 138 of Negotiable Instrument Act and to commit error in ignoring the settled position of law where if any cheque is issued for security the same would not come within the purview of section 138 of Negotiable Instrument Act. He further submits that the respondent/ complainant suppressed the fact that the signed cheque was issued as a security at the time of entering into a contract as such on the date when the cheque was handed over there was no legally enforceable debt or other liability as the same was only given as a security and the learned trial court was misled by the Respondent No. 1/Complainant to commit error in ignoring the settled position of law where the payments have been already made in a under section 138 of Negotiable Instrument Act, the same would not come. He further submits that in discharge of the monetary liability, Oriental Nicco Projects Pvt Ltd had already transferred Rs. 22,61,842/- through NEFT in the account of Pratibha Flowcon Engineering Pvt 6 Ltd. The learned trial Court has mechanically registered the complaint against the petitioners without going through the averments made in the complaint to satisfy itself whether a case is made out against the petitioners. In catena of judgments it has been held that necessary averments ought to be contained in the complaint before a person can be subjected to criminal process. It is categorically submitted that, what is required is that the persons who are sought to be made criminally liable should be, at the time of the offence is committed, in charge of and responsible to the company for conduct of the business of the company. Every person shall not fall within the ambit of the provision. Thus, its mandatory that the complaint must disclose the necessary facts to make a person liable. In absence of such an averment, the complaint of the Respondent is not maintainable and is liable to be rejected. He further submits that the institution/continuance of the criminal proceedings against the petitioner amounts to abuse of process of court and to secure the ends of justice impugned proceedings desired to be quashed. Neither the summons have been served on the Petitioners nor the bailable warrants have been served on them. It is submitted that issuance of arrest warrants without the summons or bail able warrants being served is illegal and are liable to be quashed. He also submits that the present criminal proceedings initiated by the respondent manifestly attended with mala-fide and the same is maliciously instituted with an ulterior motive for wreaking vengeance on the petitioner with a view of spite and to harras them due reasons best known to the 7 Respondent/Complainant. The entire exercise of setting the criminal law in motion by the respondent is malafide and to settle the scores between the parties which are more in the nature of civil dispute. The Respondent No. 1/ Complainant submitted false and fake submissions on oath before the learned lower court. 6. On the other hand learned counsel appearing for the respondent supports the order passed by the learned trial Court in which no interference called for. He further submits that the sole respondent/complainant has died during the pendency of this case, and no other family members are interested in pursuing the matter. 7. I have heard learned counsel for the parties and considered the rival submissions made herein and gone through the record with utmost circumspection. 8. From the perusal of the records and order passed by the trial Court, it transpires that a complaint was filed by the complainant/ respondent before the JMFC, Durg in which the JMFC, Durg, registered Complaint Case under Section 138 of the Negotiable Instrument Act against the petitioners and issued arrest warrant to the them vide orders dated 28.05.2018 and 10.08.2018 respectively. Although the learned counsel for the complainant/respondent has submitted that the sole complainant/respondent has died during the pendency of the present petition, and no other family members are interested in pursuing the matter, this Court finds the present case to be a fit case for interference while exercising its inherent power under 8 Section 482 of the CrPC. Consequently, the impugned order dated 05.07.2017 in Complaint Case No. 5020/2017, passed by the Judicial Magistrate First Class, Durg (C.G.), is hereby quashed. 9. Resultantly, this petition is allowed. 10. OfÏce is directed to send a copy of this order to the trial Court concerned for necessary information and compliance forthwith. Sd/- (Ramesh Sinha) CHIEF JUSTICE Rahul Dewangan