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Company men can only be determined upon taking evidence during trial

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17th-Jun-2017       
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High Court Division :
(Criminal Miscellaneous Jurisdiction)
AKM Asaduzzaman J
Md Iqbal Kabir J
Mozahar Sowdagor (Md) and others.....Petitioners
vs
State and another..........Opposite-Parties
Judgment
February 3rd, 2016
Negotiable Instruments Act (XXVI of 1881)
 Section 140
In the first part of Section 140 of the Act contain the offence committed by the person, who are responsible as well as in charge of the company at the time of commission of offence, shall be deemed to be guilty. But the 2nd part of Section 140 of the Act provides that any director, manager, secretary or other officer of the company would be held guilty of that offence if at that time they had active part of company as well as consent or connivance of, or is attributable to, any neglect on the part of any director. manager. secretary or other officer of the company..(13)
Code of Criminal Procedure (V of 1898)
Section 561A
Determination of a person having consent or connivance of, or is attributed to or any negligence on his part during the business of a Company or not is a disputed question of fact and can only be determined upon taking evidence during trial. There is no scope to decide the question of fact, sitting under jurisdiction of Section 561A of the Code. ...(14)
MA Awal, Advocate-For Petitioners.
Omar Sadat, Advocate-For Opposite Party No.2.
Forhad Ahmed. DAG-For the State.
Judgment
AKM Asaduzzaman J : This Rule was issued calling upon the opposite parties to show cause as to why the proceeding of Session Case No. 1221 of 2015 arising out of CR Case No.1095 of 2014 (Double Mooring Zone) under Section 138 and 140 of the Negotiable Instrument Act, now pending in the Court of Metropolitan Sessions Judge, Court, Chittagong should not be quashed.
2. Fact relevant for disposal of the rule are that M/s Super Six Star Ship Breaking Yard, a partnership firm. Accused No.1 by is partner, accused Nos. 2-4, the complainant bank sanctioned certain credit facility by the way of import loan which subsequently converted into term loan in favour of the M/s Super Six Starship Breaking Yard, Partnership Firm of Accused No.2-4. The accused Nos.2-4 as partners of the firm have been taking part actively in the running of the business of all affairs of Accused No.1 firm. Moreover the accused Nos.2-4 have stood also as guarantor personally by each for payment of the entire amount sanctioned by the complainant bank in favour of the Accused No.1 as borrower together with accurate interest and other charges. The repayment against the outstanding liability within the knowledge and with the consent of the Accused No.2-4 under the signature of the accused Nos. 2, 3 on behalf of accused No.1, Cheque No. 200 No. 5070615 dated 28-8-2014 for Taka 1,00,00,000 of Prime Bank Ltd. duly endorsed by accused Nos. 2 and 3 with the consent as well as within the knowledge of accused No.4 against the account maintaining in the name of the partnership firm, M/s Super Six Starship Breaking Yard, but the Cheque was dishonoured on 31-8-2014 for the reason 'Insufficient Fund.' The complainant sent Legal Notice on 2-9-2014 to the petitioners but after expiry of the period, the outstanding money was not paid and, as such, the complainant was compelled to file the instant case.
3. In view of the said complaint petition the learned Metropolitan Magistrate, Cognizance Court-4, Chittagong took cognizance of the case by the order dated 13-8-2014 against the accused persons including the petitioner. Thereafter the petitioner voluntarily surrendered before the court below on 30-12-2014 and obtained bail from the court.
4. Challenging the said proceedings, the petitioner thereafter filed an application under Section 561 A of the Code of Criminal Procedure and obtained the instant rule.
5. MA Awal the learned Advocate appearing for the petitioner drawing our attention to the relevant provision of law under Section 140 of the Negotiable Instrument Act submits that as per law it is required to show in the petition of complaint hat the petitioners had consent as well as knowledge about the alleged cheque. But since the petition of complaint did not contain the said statement of fact, the instant case is nothing but an abuse of the process of the Court, which is liable to be quashed.
6. Omar Sadat, the learned Advocate appearing for the Bank-Opposite party No.2 submits that Sub-section 2 of Section 140 of the Negotiable Instrument Act stated that if it is proved that the offence has been committed with the consent or connivance of, or is attributable to, any neglect on the part of any director, manager, secretary or other officer of the company, such director, manager, secretary or other officer shall also be deemed to be guilty of that offence under the Negotiable Instrument Act. In view of the above provision since these contentions are matters of fact and are required to he proved after taking evidence, at the time of trial by the trial court, sitting in the jurisdiction under Section 561A of the Code of Criminal Procedure there is no scope to examined and formed any opinion on that account, merely on the submission of the lawyer, accordingly there is nothing to interfere in this Rule and, as such, he prays for discharging the Rule.
7. Heard the learned advocate of both the sides and perused the record.
8. In this rule, it has been alleged that the petition of complaint since do not contains the statement that the alleged cheque was given with the consent as well as with the knowledge of accused petitioner No.4 against the account maintained in the name of their partnership firm M/s Super Six Star Ship Breaking Yard. i.e. accused No.1 with the said Prime Bank Ltd. the accused petitioner committed no offence under Section 138 read with Section 140 of the Negotiable Instruments Act.
9. Moreover it has been submitted by the learned advocate for the petitioner that the petition of complaint do not contain the exact date and manner how the petitioner gave consent and have the knowledge of issuance of the cheque, the impugned proceedings is nothing but an abuse of the process of the court.
10. In view of the above submission, we like to see the relevant provision of law as mentioned under Section 138 of the Negotiable Instruments Act, which runs as follows:-
"138. Dishonour of cheque for insufficiency, etc. of funds in the account-(I) Where any cheque drawn by a person on an account maintained by him with a banker for payment of any amount of money to another person from out of that account [* * * * *] is returned by the bank up paid, either because of the amount of money standing to the credit of that account is insufficient to honour the cheque or that it exceeds the amount arranged to be paid from that account by an agreement made with that bank, such person shall be deemed to have committed an offence and shall. without prejudice to any other provisions of this Act, be punished with imprisonment for a term which may extend to one year, or with fine which any extend to [thrice] the amount the cheque, or with both.
11. Provided that nothing contained In this section shall apply unless-
(a)  "The cheque has been presented to the bank within a period of six months from the date on which it is drawn or within the period of its validity, whichever is earlier,
(b)     The payee or the holder in due course of the cheque, as the case may be, makes a demand for the payment of the said amount of money by giving a notice, in writing, to the drawer of the cheque, within [thirty days] of the receipt of information by him from the bank regarding the return of the cheque as unpaid, and
(c)     The drawer of such cheque fails to make the payment of the said amount of money to the payee or as the case may be, to the holder in due course of the cheque, within [thirty days] of the receipt of the said notice."
12. In view of Sub-section 2 of Section 140 of the Negotiable Instruments Act.
"(2) where any offence under this Act has been committed by a company and it is proved that the offence has been committed with the consent or connivance of, or is attributable to, any neglect on the part of any director, manager, secretary or other officer of the company, such director, manager, secretary or other officer shall also be deemed to be guilty of such offence"
13. In the first part of Section 140 of the Negotiable Instruments Act contain the offence committed by the person who are responsible as well as in charge of the company at the time of commission of offence, shall be deemed to be guilty. But the 2nd part of Section 140 of the Negotiable Instruments Act provides that any director, manager, secretary or other officer of the company would be held guilty of that offence if at that time they had active part of company as well as consent or connivance of, or is attributable to, any neglect on the part of any director, manager, secretary or other officer of the company.
14. Moreover in view of the terms as used by  the legislature "it is proved" it is clear that mere statement in the petition of complaint. it is not enough to held a person, responsible of the Company or the other manager, secretary or other officer of the Company, guilty, it needs to be proved by way of evidence. In other wards, so long evidence is not adduced against those persons, they cannot be held guilty. Determination or a person having consent or connivance or. or is attributed to or any negligence on his part during the business of a Company or not is a disputed question of fact and can only be determined upon I taking evidence during trial. This question of fact obviously out of the ambit of the Jurisdiction of the High Court Division, conferred under Section 561 A of the Code of Criminal Procedure. There is no scope to decide the said question of fact, sitting under Jurisdiction of Section 561 A of the Code of Criminal Procedure.
15. Be that as it may, we find there is nothing to interfere in this Rule.
16. In the result, the Rule is discharged.
17. The order of stay granted earlier is hereby vacated and recalled.
Communicate the judgment at once.

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