Calcutta High Court (Appellete Side)
Parekh Aluminex Ltd. & Anr vs Venus Orchards Private Limited on 18 June, 2025
IN THE HIGH COURT AT CALCUTTA
CRIMINAL REVISIONAL JURISDICTION
Appellate Side
Present:
The Hon'ble Justice Ajay Kumar Gupta
C.R.R. 3048 of 2015
With
CRAN 3 of 2016 (Old No. 1336 of 2016)
With
CRAN 4 of 2016 (Old No. 4841 of 2016)
Parekh Aluminex Ltd. & Anr.
Versus
Venus Orchards Private Limited
For the Petitioners : Mr. Tarique Quasimuddin, Adv.
Ms. Sanchita Chaudhuri, Adv.
Ms. Syed Khafiz Zamar, Adv.
Heard on : 17.04.2025
Judgment on : 18.06.2025
2
Ajay Kumar Gupta, J:
1.
By filing this Criminal Revisional application under Section
482 of the Code of Criminal Procedure, 1973 (hereinafter referred to
as ‘CrPC‘), the petitioners have prayed for quashing of the proceeding
being Complaint Case No. C-6501 of 2013 filed under Sections
138/141 of the Negotiable Instruments Act, 1881 (hereinafter
referred to as ‘N.I. Act‘) pending before the Court of the Learned
Metropolitan Magistrate, 15th Court at Calcutta.
2. The brief facts, leading to filing of this instant Criminal
Revisional application, are as under:
2a. The petitioner no. 1 is a registered company under the
Companies Act, 1956 and petitioner no. 2 is the Company Secretary
of petitioner no. 1/Company, M/s. Parekh Aluminex Ltd. The
petitioner no. 2 had no role in policy making or in any day-to-day
business affairs of the company. She had a role of discharging her
duties and function as Company Secretary as prescribed under the
2b. The cheque involved in the present proceeding was issued by
one Mr. Amitabh Arun Parekh @ Amitabh A. Parekh in favour of the
complainant. Mr. Parekh expired on 06.01.2013. Petitioner No. 2 had
no role in issuance of the said cheque or in conducting business
3dealing that gave rise to any alleged legal debt and liabilities. A
general averment made by the complainant in the complaint is that
the petitioner no. 2 along with other four accused persons, were/are
in control of the company’s affairs and are responsible for day-to-day
business of the company though the petitioner no. 2 was merely a
Company Secretary and had no control over the affairs. She retired
from the company on 31.03.2013 and was never responsible for day-
to-day business affairs of the company. Therefore, ingredients of
offence as alleged under Sections 138/141 of the N.I. Act against the
petitioner no. 2 are not attracted.
2c. The registered office of the petitioner no. 1/company is
situated in Mumbai and petitioner no. 2 is also a resident of Mumbai
which is beyond the territorial jurisdiction of the Learned Trial Court
but without considering the said facts, the Learned Trial Court issued
process against the petitioner no. 2 without complying with the
mandatory provision of Section 202 of CrPC which results that the
entire proceeding is liable to be vitiated. Furthermore, she retired
from the company on and from 31st March, 2013. Therefore, she
cannot be held liable for any offence for commission of an offence
punishable under Sections 138/141 of the N.I. Act.
2d. Lastly, it is averted that other two accused persons, namely,
Kiran Kumar Chandulal Parekh and Devanshu Pravinbhai Desai were
4the non-executive directors of the petitioner no. 1/company. They
have filed two Criminal Revisional Applications before the Learned 2nd
Judge, City Sessions Court, Calcutta being Crl. Rev. No. 115 of 2013
and Crl. Rev. No. 177 of 2013 for quashing their cases. After hearing
the parties, the Learned Judge quashed the proceedings against them
since they were neither executive directors nor involved in any affairs
or responsible for day-to-day business affairs of the company.
2e. In view of the above facts and circumstances, petitioner no.
2 filed this application seeking for quashing of the proceeding against
her in view of the facts stated herein above. Hence, this application.
SUBMISSIONS ON BEHALF OF THE PETITIONERS:
3. Learned counsel appearing on behalf of the Petitioners
vehemently argued and submitted that the Learned Trial Court had
issued summons against the petitioner no. 2 in a casual and
mechanical manner and further without applying judicious mind.
Though, it is evident from the complaint itself that the office of
petitioner no. 1/company and residence of petitioner no. 2 are
situated outside the territorial jurisdiction of the Learned Trial Court.
The Learned Trial Court ought to have satisfied with regard to prima
facie case of the complainant.
5
3a. However, Learned Trial Court ignored the mandatory
provision as stipulated in Section 202 of the CrPC prior to issuance of
the summons, as such same is issued violating the provision and,
accordingly, the entire proceeding is liable to quashed as none of the
ingredients as required while initiation of the proceeding are fulfilled.
3b. It is further submitted that the complainant has not
disclosed the specific role played by the petitioner no. 2 in the alleged
offence. The complaint merely contains vague and general averments
that all the four accused persons were/are in control over the affairs
and are responsible for the day-to-day business affairs of the
company. Therefore, the proceeding against the petitioner no. 2 is
liable to be quashed as similar as other accused persons.
3c. Their cases have been quashed by the Learned Sessions
Judge as they were not involved in the alleged offence. They have not
played any role of the day-to-day affairs of the company. Similarly,
Petitioner no.2 being the company’s Secretary, had only statutory
duty under the Companies Act, 1956 and she has a key responsibility
in several areas of the management of the company as required
under the law and the Company Secretary never dealt and had no
control over the day-to-day business affairs of the company. To
bolster his submission, the learned counsel relied upon the following
judgments as under: –
6
3. Gunmala Sales Private Limited and Others Vs.
Navkar Promoters Private Limited and Others3;
4. On the other hand, none appears on behalf of the opposite
party despite service of summons. Therefore, the matter has been
taken up for disposal.
DISCUSSIONS, ANALYSIS AND CONCLUSION OF THIS COURT:
5. Considering the submissions made by the learned counsel
appearing on behalf of the petitioner, judgments relied upon by the
petitioner and on perusal of the record, it reveals the Opposite party
has initiated a proceeding under Section 200 of the CrPC for
commission of the offence punishable under Section 138/141 of the
N.I. Act against the Company and others, who were associated with
the company.
1
2024 SCC OnLine SC 311;
2
(2022) 10 SCC 152 : 2022 SCC OnLine SC 945;
3
Criminal Appeals No. 2228 of 2014 with Nos. 2229-65 of 2014;
4
(2005) 8 SCC 89 : 2005 SCC OnLine SC 1363;
7
6. It is an admitted fact that two accused persons, namely Kiran
Kumar Chandulal Parekh and Devanshu Pravinbhai Desai were non-
executive directors of the petitioner no. 1/company. They have filed
two Criminal Revisional Applications before the Learned 2nd Judge,
City Sessions Court, Calcutta being Crl. Rev. No. 115 of 2013 and
Crl. Rev. No. 177 of 2013. After hearing the parties, the Learned
Judge quashed the proceedings against them since they were neither
executive directors nor involved in any affairs and responsible for
day-to-day business affairs of the company. Similarly, the Petitioner
no.2 was merely a Company Secretary associated with the Company.
In support of her contention, she placed a form 32 (pursuant to
sections 303 (2), 264 (2) or 266(1) (a) and 266 (1) (b) (iii) of the
Companies Act, 1956). Upon perusal of the Form 32, it reveals she
was a Company Secretary of the company/petitioner no. 1 and
ceased to be associated with the company on and from 31.03.2013.
7. According to the petitioner no. 2, she is innocent and not
involved in the offence as alleged by the complainant. In addition, the
complainant has not disclosed any ingredients or role played by the
petitioner no. 2 in the offence punishable under Sections 138/141 of
the N.I Act. No specific averment is made either in the complaint or
affidavit with regards to her role played in a transaction involved
between the complainant and the company. Petitioner No.2 is
8
unaware about the transaction and issuance of cheque on behalf of
the Company. Actually, cheque was issued by one Amitabh Arun
Parekh @ Amitabh A. Parekh. He expired on 06.01.2023.
8. The Petitioner no.2 has prayed for quashing the proceeding on
mainly on two grounds. Firstly, she was mere by a Company
Secretary of the petitioner no. 1 and had no role in the day-to-day
business affairs of the company nor played any role in financial
transactions of the company. Secondly, she resides in Mumbai
beyond the area in which the Learned Trial Court exercises its
jurisdiction but the Learned Trial Court issued summon without
conducting the mandatory inquiry or investigation as per Section 202
of the CrPC corresponding to Section 225 of BNSS against her for the
purpose of deciding whether or not there is sufficient ground for
proceeding against her.
9. Nothing transpires from the documents to suggest that the
petitioner no.2 was/is director or a share holder of the company, she
had no role to play in any transaction or day-to- day business affair
of the company. She was a Company Secretary. She had not issued
any cheques. She cannot be said to be an active Director or who can
be termed as responsible for running the day-to-day management of
the company. The liability of the Company Secretary (non-executive)
is very limited and it does not extend to managing of the day-to-day
9
affairs of the company. She was not a signatory of the cheque which
was dishonoured. In this regard, this Court finds the judgments
relied upon by the petitioner in the cases of 1) S.M.S.
Pharmaceuticals Ltd. Vs. Neeta Bhalla and Anr. 2) Sunita Palita
and Ors. Vs. Panchami Stone Quarry and 3) Susela Padmavathy
Amma Vs. Bharti Airtel Limited are squarely applicable in the
present case. The Hon’ble Supreme Court, time and again, reiterated
as under: –
“A Director of a company who was not in
charge or responsible for the conduct of the business
of the company at the relevant time, will not be liable
for offence punishable under Section 138/141 of the
N.I.Act. The liability under Section 138/141 of the
N.I.Act arises from being in charge of and responsible
for the conduct of the business of the company at the
relevant time when the offence was committed, and
not on the basis of merely holding a designation or
office in a company. It would be a travesty of justice
to drag directors, who may not even be connected
with the issuance of a cheque or dishonour thereof,
such as Director (Personnel), Director (Human
Resources Development), etc into Criminal
Proceedings under the N.I. Act, only because of their
designation”
(Emphasis supplied)
10
10. In the case in hand, the petitioner no. 2 was mere by a
Company Secretary, who was neither in charge nor responsible for
the conduct of the business of the company at the relevant point of
time. She was not a signatory of the cheque which was dishonoured.
11. So far as the issue of process against the petitioner No.2 is
concerned, this court also finds it is admitted facts that the Petitioner
No.2 resides beyond the area in which the Learned Trial Court
exercises its jurisdiction, the Learned Trial Court failed to consider
that while issuing process, the Learned court should have convinced
itself as to how the petitioner no. 2 was being considered as being in
charge of the day to day business affairs of the company and
responsible for issuance of cheques. Merely relying on the averments
made in the complaint against the petitioner No.2 that she is
responsible for the offence is insufficient. It does not take away the
responsibility of the Trial court to ascertain the credibility of such
averments prior to issuing process against particular person. It is not
clear from the order as to how the Learned Trial court could come to
a conclusion that the Petitioner No. 2 was an active Director of the
said company and also she is responsible and was in charge of the
day-to-day affairs of the company. There is mandatory provision to
postpone the issue of process under Section 202 of the CrPC for the
purpose of deciding whether or not there is sufficient ground for
11
proceeding against the petitioner no.2 but the Ld. Trial court ignored
and neglected to do so and mechanically issued process against her.
12. In view of the above circumstances, this court is of the view
that process which has been issued against the Petitioner no.2 is not
commensurate with the position of petitioner no. 2 held as Company
Secretary. It is relevant to mention that opposite party/complainant
has not produced anything before the court where from it would be
evident that the Petitioner No. 2 was in any manner responsible for
day-to-day business affairs of the company and was involved in
business transaction and issuance of cheque, which was
dishonoured. Accordingly, if such proceeding is allowed to be
continued against the petitioner no. 2 it would be gross abuse of
process of law.
13. Consequentially, this Court can exercise its inherent power
under Section 482 of the Cr.PC to prevent the abuse of the process of
Court or otherwise to secure the end of justice.
14. In the light of aforesaid discussion and judgments referred
by the Parties, this Court is of the view that the proceedings being
Complaint Case No. C/6501 of 2013 filed under Sections 138/141 of
the Negotiable Instruments Act, 1881 pending before the Court of the
Learned Metropolitan Magistrate, 15th Court at Calcutta should not
12
be allowed to be continued insofar as the Petitioner no.2 is concerned
and, accordingly, the same stands quashed.
15. Consequently, CRR 3048 of 2015 is, thus, allowed.
Connected applications being CRAN 3 of 2016 (Old No. 1336 of
2016) and CRAN 4 of 2016 (Old No. 4841 of 2016) are also, thus,
disposed of.
16. Case Diary, if any, is to be returned to the learned Advocate
for the State.
17. Let a copy of this judgment and order be sent to the Learned
Court below for information.
18. Interim order, if any, stands vacated.
19. Parties shall act on the server copies of this Judgment
uploaded on the official website of this Court.
20. Urgent photostat certified copy of this judgment, if applied
for, is to be given as expeditiously to the parties on compliance of all
legal formalities.
(Ajay Kumar Gupta, J)
P. Adak (P.A.)