JUDGMENT Vinod Prasad, J.
1. The applicant, who is the Chairman/Chief Managing Director of M/S Eastern Sugar & Industries Ltd. Motihari (Bihar), has prayed for quashing of complaint case number 437 of 2003 Ajai Bathwal v. Bimal Kumar Nopani And Ors. under Section 138 Of Negotiable Instruments Act 1881, herein after referred to as the Act, pending before Civil Judge (Jr. Div), Court No. 20, Gorakhpur against him, through this application. He has also prayed for stay of further proceeding of the aforesaid case pendent lite.
2. On 29.4.03 the complainant Ajai Kumar Bathwal, respondent No. 2 filed a complaint in the court of Judicial Magistrate, Gorakhpur being complaint case number 437 of 2003, with the allegations that he is a resident of Betia Hata Police station Cantt, district Gorakhpur and is the proprietor of M/S Shyam Traders, Keshav Market, Golghar, Gorakhpur. Under business transactions he used to supply electrical goods, building materials, paints and other general goods to Eastern Sugar & Industries Ltd. through his said firm, and since last five years, he had supplied goods worth Rs. 75 lacs (Rs. 7500000/-) out of which Rs. 15 lacs (Rs. Fifteen Lacs) were due on the said Sugar Mill. Repeated demands of debted amount resulted in issuance of cheque No. 3218117 on 12.3.2003 of an amount of Rs. 1350000/- (Rs. Thirteen lacs fifty thousand only) with the assurances by the owner and officers of the will that the rest of the money will be paid later on. The complainant deposited the said cheque in his bank Punjab And Sindh Bank, Golghar, Gorakhpur but it bounced on 28.3.2003, because of insufficient funds in the account of the cheque with the endorsement "Exceeds arrangement". The complainant gave a notice through S.N. Sinha Advocate to all the accused on 30.3.2003 but they, inspite of receiving the said notice were not ready to pay the amount of cheque and had no intention to pay the same. They were threatening the complainant on phone to return the cheque and, desist from filing a case other wise bear the consequences regarding which the complainant informed Senior Superintendent of Police Gorakhpur on 25.4.2003. In support of his complaint the complainant filed the copy of the notice dated 30.3.03 given to the accused through S.N. Sinha, Advocate. The trial, court, summoned the applicant vide it's order plated 6.7.2004. As the applicant did not compear consequently warrant was issued against him. The review application of applicant dated 20.12.2005 filed by his counsel for withdrawal of summoning order and warrant was rejected by the trial court on 20.12.2005. Hence this application under Section 482 for quashing of the proceeding.
3. I have heard the counsel for the applicant, Sri S.P.K. Tripathi, advocate on behalf of complainant respondent No. 2 and the learned AGA and have perused the application and affidavit appended therewith.
4. The counsel for the applicant submitted that the applicant is the chairman of the company and is residing at Kolkata and has no concern with day to day affairs of the sugar factory which is situated in Motihari (Bihar). He further contended that the cheque was not signed by the applicant. He further submitted that the cheque was not dishonoured because of insufficiency of funds but was dishonoured because of "Exceeds arrangement" and hence Section 138 of the Act is not attracted in the case. He further contended that Section 141 of the Act does not apply in the case and since the company has not been made an accused therefore the prosecution of the applicant alone is not maintainable. He further submitted that the cheque relates to a cheque book which was lost and therefore also no offence is made out against the accused and his prosecution deserves to be quashed.
5. Counsel for the respondent and the learned AGA on the other hand submitted that the applicant is the Chief Managing Director and hence is liable under the Act. The conduct of business of the company was done with his consent and hence he cannot be allowed to take shelter behind the submission that he resides in Kolkata. They further submitted that bouncing of cheque because of exceeds arrangement by itself denotes that the amount in the account was insufficient and therefore the cheque was bounced because of insufficiency of funds. They also submitted that the lost cheque book defence is bogus and is no defence in prosecution under Section 138 of the Act and this defence is false on the face of it. They submitted that no such defence was pleaded before the trial court in the application for recall, review of summoning order and this new plea can not be allowed to be canvassed in this Court under Section 482 Cr.P.C. and no new material can be pleaded in this Court which is subject matter of evidence and proof. The defence taken in this application before this Court is an after thought new plea and on that basis the prosecution cannot be thwarted.
6. Cogitating over the rival submissions so far the contention that the cheque had bounced because of "exceed arrangement" noting by the bank in its memo and therefore no offence under Section 138 of NI Act is made out, is concerned the said submission is devoid of merit on the face of fit. The said noting denotes nothing but the fact that the cheque was given of an amount which was not credited in the account and therefore the cheque amount was more than the balance amount in the bank account therefore the cheque was, in fact, dishonoured because of insufficiency of funds in the account and therefore falls within the ambit of Section 138 of NI Act. Technically the words may be different but essentially the two expressions exceeds arrangement and "insufficiency of fund" have the same meaning. Both denotes that the cheque amount was more than the balance amount in the bank account from which the cheque was issued. We must not forget the maxim "de minimus non curate lex" (law does not care for trifles). Thus, the submission of the counsel for the applicant being without any merit is rejected.
7. The next submission of the applicants counsel that the company has not been made an accused and therefore the applicant can not be prosecuted is also devoid of substance and deserves to be rejected. This question is no longer res Integra. It has been answered by the apex court in the case of Anil Hada. Supreme Court in that case Anil Hada v. India Acrylic Ltd. has held:
If the offence was committed by a company it can be punished if company is prosecuted. But instead of prosecuting the company if the payee opts to prosecute only the persons falling within the second or third category the payee can succeed in the case only if he succeeds in showing that the offence was actually committed by the company. In such a prosecution the accused can show that the company has not committed the offence, though such company is not made an accused, and hence the prosecuted accused is not liable to be punished. The provisions do not contain a condition that the prosecution of the company is sine qua non for prosecution of the other persons who fall within the second and the third categories mentioned above. No doubt a finding that the offence was committed by the company is sine qua non for convicting those other persons. But if a company is not prosecuted due to any legal snag or otherwise the other prosecuted persons can not, on that score alone, escape from the penal liability created through the legal fiction envisaged in Section 141 of the Act.
8. Thus it is clear that the person responsible for the conduct and in charge of the business of the company can be prosecuted without prosecution of the company itself. It is the choice of the complainant against whom he wants to proceed. In the judgment Ambesh Balwapuri v. Continental Carbon India Ltd. 2006 (1) ALJ 396, the judgment of the apex court rendered in S.M.S. Pharmaceuticals LTD. v. Neeta Bhalla and Ors. 2005 (8) SCC 89, is quoted with approval and in para 9 thereof, the aforesaid judgment of the apex court is quoted as-
(c) The answer to question (C) has to be affirmative. The question notes that the Managing Director or Joint Managing Director would be admittedly in charge of the company and responsible to the company for the conduct of it's business. When that is so, holders of such positions in a company become liable under Section 141 of the Act. By virtue of the office they hold as managing Director or Joint Managing Director, these persons are in charge of and responsible for the conduct of business of the company. Therefore they get covered under Section 141.
9. In the present case the said observation of the apex court is fully applicable as it is clearly mentioned in the array of the accused at serial No. 2 of the complaint that "2. Sri Bimal Kumar Nopani C.M.D. of M/S Eastern Sugar & Industries Ltd. Motihari (Bihar) 12, Govt. Place East, Kolkata (W.B.). Para 4 and 6 of the notice of demand of payment as is envisaged under Section 138 of NI Act sent by the complainant, mentioned thus:
4. That M/S Eastern Sugar & Industries Ltd. is a Pvt. Ltd. Company and all of you were in charge of and were responsible to the company for the conduct of the business of the said company.
5. ----.
6. That from out of that account for discharge the above mentioned liability, cheque number 3218117 dated 12.3.2003 for Rs. 1350000/= only drawn on Bank of India, Motihari Bihar was drawn in favour of my client by the then executive president Mr. M.K. Suri and Chief accounts Officer Mr. Ajai Kumar Kabra well within the knowledge and consent of you people.
10. It was after this notice that the complaint was filed in the court by the complainant. Consequently it cannot be said that the applicant is not connected with the offence in any manner whatsoever. The notice embraces him as an accused in the case and he is arraigned in the complaint as such. The notice specifically mentions that he is also responsible for conduct of the business of the mill. Thus the contention of the counsel for the applicant that the applicant was not responsible for the conduct of business of the company nor he was in charge of the said conduct of business is against the factual matrix of the case and deserves to be repelled and I does so and reject the said contention.
11. It was, lastly, contended that the cheque in question was stolen and therefore also no offence is made out. This submission is also not acceptable firstly, because the said fact is subject to proof during the trial by leading evidence secondly, because no intimation regarding the theft of the said cheque was ever given to the bank nor there is any pleading to that effect in this application and lastly that no such case was pleaded before the trial court. The application for discharge/review is conspicuously silent over this aspect of the matter which has been pleaded for the first time before this Court, in this application under Section 482 Cr.P.C. The same can not be considered by this Court as it is an after thought defence and was not pleaded before the magistrate. No new factual dispute can be allowed to be raised in this Court under Section 482 Cr.P.C. nor the same can be considered in exercise of the power under that Section. Further in reply by Amit Basu, on behalf of the applicant which has been filed as annexure No. 5 to this application it is stated that-
Your client is aware that the subject cheque book containing the said cheque leaf referred to in your letter under reference was lost from the custody of our clients, factory at Motihari Bihar. The said fact was duly recorded with the concerned police station on or about 21st March 2003. Your client had full knowledge of the same. In as must as the signatory of the said cheque as alleged in your letter under reference has left from his service since the end of January, 2003, the question of issuance of any such cheque does not and can not arise. In the circumstances, the question of making any payment to your client arising out of the said purported cheque does not and cannot arise.
12. It is not disputed that the signature on the cheque is genuine and that the cheque belong to the company. Hence this contention also is devoid of merit and is rejected.
13. In the essence, I don't find any of the submissions raised by the counsel for the applicant legally tainable and hence acceptable. Consequently this application is without any force and hence is rejected.