TMI Blog2007 (4) TMI 737X X X X Extracts X X X X X X X X Extracts X X X X ..... resented two Account Payee Cheques bearing Nos. 477440 and 477441 respectively, dated 26/5/2003 amounting to a sum of ₹ 4 lakhs drawn on Canara Bank, for encashment through its banker. Those cheques were issued on behalf of M/s. Victory Casting Ltd. But on presentation, those cheques were dishonoured due to insufficiency of fund. According to the complainant, Victory Casting Ltd. issued those cheques for discharging of its existing liability towards the opposite party No. 2. 3. After the cheques were dishonoured, the opposite party No. 2 issued a Demand Notice to the accused persons on 17/11/2003 and it was received on behalf of M/s. Victory Casting Ltd. (hereinafter referred to as the said company) on 18/11/2003. Despite receipt of the said notice the said company or its directors, who are the accused persons of the case, did not make any payment and as such, they all are liable to be punished under Section 138/141 of the N.I. Act. 4. Learned Chief Metropolitan Magistrate, Calcutta, took cognizance of the offence and transferred the case to the file of the learned 3rd Metropolitan Magistrate, Calcutta, for disposal, who after examining the representative of the opposit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , the Trial Court cannot look into the documents in support of the claim of the petitioner that he resigned from the directorship of the company prior to the issuance of the cheques. The documents in question can only be considered after recording of the evidence and thereby the Court can only come to a conclusion regarding the claim of the accused/ petitioner. In effect of the learned advocate for the complainant submitted that the question, as raised by the accused/petitioner, cannot be considered unless the evidences of the parties are recorded. As such, he has prayed for dismissal of the revisional application. 7. It is admitted position that a case under Section 138/141 of the N.I. Act was started at the instance of the opposite party No. 2 alleging therein that two cheques were issued by the accused company on 26/ 5/2003 in favour of the said complainant and those cheques were dishonoured due to insufficiency' of fund and in spite of demand the accused persons did not pay the said amount to the complainant. Due to this, the complainant filed the case not only against the company but also against its directors. There cannot be any doubt that as per provisions of Section ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ve mainly been raised on behalf of the accused/petitioner viz. that before the date of issuance of the cheques, the accused/petitioner resigned from the directorship of the accused company and as such, he could not be held responsible for the dishonourment of the cheques in question and secondly since there is no averment in the petition of complaint to the effect that the petitioner was responsible for the conduct of the business of the accused company, so on that ground also the case was not maintainable against the petitioner. 11. Let us now take into consideration the first point. I have already pointed out that the cheques in question were issued on 26/5/2003. The accused/petitioner has claimed that he resigned from the directorship of the said company on 22/5/2003 and as such, he cannot be held responsible for the dishonourment of those cheques. Undoubtedly there is force in the argument, as advanced on behalf of the accused/ petitioner. If before the issuance of the cheques, the accused/petitioner already resigned from the directorship, then he cannot be held responsible for this offence. Now in order to establish this claim the accused/petitioner has filed the certified ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s were issued, was not the Director of the accused company. As such, he cannot be held responsible for the dishonourment of those cheques. 12. That apart, my attention was drawn in respect of a certified copy of the order passed in connection with another proceeding involving the present petitioner and the defacto complainant where the defacto complainant clearly admitted that the accused/petitioner resigned from the directorship of the company on 22/5/2003. This fact certainly supports the claim of the accused/petitioner so far as this case is concerned. Learned advocate for the opposite party/complainant argued that the said order of another proceeding was passed on consent of the complainant. According to him, when a consent order is passed, that cannot be binding on a Judge who is deciding another proceeding. In this respect he has cited a decision reported in AIR1989SC38 (Municipal Corporation of Delhi v. Gautam Kaur). There cannot be dispute in respect of the legal position as enunciated in the said decision. But nowhere in the said decision it has been stated that the consent which was given by the complainant in another proceeding on the self-same issue, cannot be taken ..... X X X X Extracts X X X X X X X X Extracts X X X X
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