Prakash Sharma vs M/S. Vision Cell (Pvt.) Ltd on 29 July, 2026

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    Calcutta High Court (Appellete Side)

    Prakash Sharma vs M/S. Vision Cell (Pvt.) Ltd on 29 July, 2026

                          IN THE HIGH COURT AT CALCUTTA
                         CRIMINAL REVISIONAL JURISDICTION
                                  APPELLATE SIDE
    
    
    PRESENT:
    THE HON'BLE JUSTICE UDAY KUMAR
    
    
                                   CRR 3433 OF 2022
    
                                    PRAKASH SHARMA
                                           -VS-
                               M/S. VISION CELL (PVT.) LTD.
    
    
    For the Petitioner           : Mr. Pawan Kumar Gupta, Ld. Adv.
                                   Mr. Sovan Bera, Ld. Adv.
                                   Ms. Puja Beriwal, Ld. Adv.
                                   Ms. S. Nesar, Ld. Adv.
                                   Mr. S. Sett, Ld. Adv.
    
    For the Opposite Party       : Ms. Manju Ararwal, Ld. Sr. Adv.
                                   Ms. Anju Manot, Ld. Adv.
                                   Ms. Anita Pandey, Ld. Adv.
    
    Reserved on                  : 18.06.2026
    
    Pronounced on                : 29.07.2026
    
    
    UDAY KUMAR, J.: -
    
    1.

    This revisional application highlights a classic attempt to stretch the

    special provisions of a summary penal statute beyond its breaking point,

    SPONSORED

    threatening to drag a domestic stranger into the harsh net of a criminal

    prosecution. The petitioner has approached this Court under Section

    482 read with Section 401 of the Code of Criminal Procedure, 1973,

    seeking the wholesale quashing of the proceedings in Complaint Case
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    CRR 3433 OF 2022

    No. CN/533 of 2020 pending before the Learned 14th Metropolitan

    Magistrate at Calcutta. The immediate trigger for this petition is an

    interlocutory order dated 17.12.2021, by which the learned Magistrate

    rejected the petitioner’s plea to drop his name from the array of the

    accused, holding himself procedurally restricted within a summary

    summons framework from recalling his own process.

    2. The factual landscape, as it appears from the complaint, reveals that the

    complainant, a private limited company dealing in mobile handsets,

    instituted a prosecution under Section 138 read with Section 141 of the

    Negotiable Instruments Act, 1881. The complainant asserted that an

    entity styled as M/s S.R. Telematics (Accused No. 1) had run up an

    outstanding commercial liability of Rs. 2,34,931/- for mobile phone

    supplies. The complaint states that Accused No. 2 (Ram Ratan Sharma)

    and Accused No. 3 (Prakash Sharma, the petitioner here) were active

    “partners” of the firm, looking after its daily operations. To liquidate part

    of this debt, two cheques totalling Rs. 53,879/- (being Cheque No.

    006914 for Rs. 27,287/- and Cheque No. 006915 for Rs. 26,592/-),

    dated 20.02.2020, were drawn on the Hatibagan Branch of Allahabad

    Bank under the account of the firm. When presented on 21.04.2020,

    both instruments bounced and were returned with the banking remark

    “ACCOUNT CLOSED” vide Cheque Return Memo dated 24.04.2020. The

    statutory demand notice dated 22.05.2020 went unanswered, leading to

    the filing of the complaint.

    3. The controversy shifts dramatically when one glances at two

    unassailable public documents brought on record by the petitioner.
    3
    CRR 3433 OF 2022

    First, the official Trade License issued by the Kolkata Municipal

    Corporation for 2018-2019 proves that M/s S.R. Telematics was never a

    partnership firm, but was structured exclusively as a sole proprietorship

    concern belonging to the petitioner’s mother, Mrs. Shakuntala Sharma.

    Second, a death certificate issued by the registration authority

    establishes that Accused No. 2, the petitioner’s father and the alleged

    drawer of the cheques, had passed away intestate on 23.11.2017; nearly

    three years prior to the apparent dates written on the face of the

    instruments in 2020. The Learned Magistrate, operating within the strict

    confines of a summary trial, rejected the petitioner’s plea to be dropped

    from the array of parties, holding that once cognizance is taken, there is

    no procedural room for “discharge” or recall of process under the rule

    governing summary summons trials.

    4. Mr. Pawan Kumar Gupta, learned advocate appearing for the petitioner,

    has strenuously argued that the continuation of this prosecution against

    the petitioner is a manifest abuse of judicial process. He submits that

    the complainant has engineered a fictional partnership firm with the

    oblique motive of transforming a stale commercial debt into a tool of

    financial extortion against a legal stranger who maintains no structural,

    proprietary, or operational link with the business entity in question.

    5. Developing his arguments on the corporate character of the entity, Mr.

    Gupta submits that the complainant has simulated an active

    partnership firm to exploit the enabling fiction of vicarious liability under

    Section 141 of the NI Act. However, the official municipal records

    conclusively establish that M/s S.R. Telematics is a sole proprietorship
    4
    CRR 3433 OF 2022

    concern belonging exclusively to the mother. The petitioner is neither the

    proprietor nor a partner, nor did he sign the cheques, nor own or

    operate the concerned bank account at any point in time.

    6. He relies heavily on the recent coordinate bench ruling of this Court in

    N. Mamatha Nagesh v. State of West Bengal and another, 2026 SCC

    OnLine Cal 5123, specifically Paragraph 61(iv), to contend that a

    domestic, familial relationship within a household cannot serve as a

    legal substitute for a registered partnership deed or a defined corporate

    structure. In the absence of a registered partnership deed, a spouse or

    family member cannot be hauled into the net of criminal prosecution

    under Section 141 based on bald, generic averments of participation in a

    business.

    7. He further cites Raghu Lakshminarayanan v. Fine Tubes, (2007) 5 SCC

    103 to emphasize that Section 141 of the N.I. Act is strictly restricted to

    companies, partnership firms, or defined associations of individuals, and

    cannot be extended to a sole proprietorship concern, which lacks a

    separate legal personality from its owner. He also places reliance on Alka

    Khandu Avhad v. Amar Syamprasad Mishra, (2021) 4 SCC 675 to argue

    that criminal liability under Section 138 is strictly author-centric,

    binding only the signatory of the cheque, and a person who is not a

    drawer of the cheque and has not signed it cannot be prosecuted unless

    the vicarious principles of Section 141 are attracted. He also cites TV

    Today Network Ltd. and others v. Ramesh Bhiduri, 2025 SCC OnLine Del

    8215 to emphasize that the elements of criminal liability under a

    summary statute must be strictly construed and cannot be expanded by
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    CRR 3433 OF 2022

    judicial implication to encompass non-signatories, and State of Haryana

    v. Bhajan Lal, (1992) Supp (1) SCC 335 to contend that where the

    allegations made in the complaint, taken at their absolute face value, do

    not prima facie constitute any offense or make out a case against the

    accused, the High Court is duty-bound under Section 482 Cr.P.C. to

    quash the proceeding in limine.

    8. Finally, Mr. Gupta points out a fatal structural defect in the arraignment

    itself, noting that the true living sole proprietor, Mrs. Shakuntala

    Sharma, was never even arrayed as an accused. He concludes by

    pointing out that under Section 201 of the Indian Contract Act, 1872,

    the banking mandate stood automatically revoked the moment the

    father expired in 2017, and a deceased person cannot maintain an

    account. Therefore, he prays for the unconditional quashing of the

    proceeding.

    9. On the other hand, Ms. Manju Agarwal, learned senior advocate for the

    Opposite Party/complainant, raises a strong threshold objection. She

    argues that the learned Magistrate acted correctly under the law by

    refusing to review or recall the process once issued, placing reliance on

    the landmark rulings in Adalat Prasad v. Rooplal Jindal and Others,

    (2004) 7 SCC 338, Subramanium Sethuraman v. State of Maharashtra

    and Another, (2004) 13 SCC 324, and the Constitution Bench directions

    in In Re: Expeditious Trial of Cases Under Section 138 of N.I. Act, 1881,

    (2021) 16 SCC 116. She contends that the Code does not contemplate a

    formal stage for discharge or review of a summoning order in a summary

    summons trial, that the trial court has no inherent power to recall
    6
    CRR 3433 OF 2022

    process, and that the accused must be left to agitate his defences during

    the course of a regular trial.

    10. She further argues, citing Rathish Babu Unnikrishnan v. State (NCT of

    Delhi), (2022) 20 SCC 661, that the petitioner’s pleas involve deeply

    disputed questions of fact that must be tested in a full trial. She submits

    that a revisional court should not prematurely intercept a prosecution or

    conduct a mini-trial on affidavit evidence when strict statutory

    presumptions under Sections 20 and 139 of the NI Act operate in favour

    of the holder.

    11. Lastly, she alleges that the petitioner actively participated in the family

    business as an “association of individuals” within the broad definition

    tracked under the Explanation to Section 141 NI Act, and that the

    petitioner actively deceived the complainant by deliberately tendering

    pre-signed cheques of his deceased father to liquidate active business

    liabilities, while keeping the complainant in the dark regarding the

    death. She submits that the petitioner made a continuous legal

    representation that the banking mandate was alive, and he must now

    step into the witness box to rebut the statutory presumptions rather

    than seeking an early, unauthorized exit from the prosecution.

    Therefore, she prays for the dismissal of the revision.

    12. I have given my anxious consideration to the structural anatomy of the

    underlying complaint; the arguments advanced by both sides and

    evaluated the records. The legal conflict here requires this Court to

    determine whether the statutory net of Section 141 NI Act can be cast

    over a family member of a sole proprietorship, and whether a non-
    7
    CRR 3433 OF 2022

    signatory can be prosecuted for cheques linked to a banking mandate

    that was legally extinguished by death.

    13. It is basic to criminal jurisprudence that the statutory fiction of

    vicarious liability codified under Section 141 of the Negotiable

    Instruments Act, 1881 is an exception to the general rule of strict

    personal liability in penal law. The expression ‘Company’ explicitly

    defined under the Explanation to the said section covers a body

    corporate, a partnership firm, or an association of individuals. A sole

    proprietorship concern is conspicuously and intentionally absent from

    this statutory taxonomy. A proprietorship concern has no legal identity

    independent of its proprietor; it is merely a trade name under which a

    natural person chooses to execute commercial dealings. As settled by

    the Supreme Court in Raghu Lakshminarayanan (supra), the provisions

    of Section 141 cannot be distorted or weaponized to hook a family

    member or an alleged manager of a proprietary concern into a criminal

    trial.

    14. Furthermore, as this Court observed in N. Mamatha Nagesh (supra),

    domestic proximity or a filial connection within a shared household

    cannot be accepted as a valid legal surrogate for a registered partnership

    deed or a corporate matrix. The complainant’s bold assertion that the

    petitioner acted as a “partner” of a sole proprietorship concern belonging

    to his mother is a legal absurdity. Criminal liability under a summary

    penal statute cannot be widened by crude implications or speculative

    logic. The failure of the complainant to recognize that a proprietorship

    concern cannot be sued as an independent juristic entity separate from
    8
    CRR 3433 OF 2022

    its master constitutes a fundamental defect that invalidates the

    invocation of Section 141 against anyone else under the banner of that

    entity.

    15. Moving to the second point, Section 138 creates a strict, author-centric

    offense. It mandates that the dishonoured instrument must be drawn by

    a person on an account “maintained by him.” The biological fact

    established by the death certificate shows that the alleged drawer, Ram

    Ratan Sharma, had suffered biological and legal demise on 23.11.2017.

    Under Section 201 of the Indian Contract Act, 1872, the banking

    mandate and agency stood automatically revoked the moment the

    account holder expired. A dead person cannot be deemed to maintain an

    active account, as the underlying relationship of customer and banker

    stands dissolved by operation of law. The Supreme Court in Alka

    Khandu Avhad (supra) held unmistakably:

    Section 138 of the NI Act hooks criminal liability strictly on the
    drawer of the cheque. A person who is not a drawer of the cheque
    and has not signed it cannot be prosecuted under Section 138,
    unless the vicarious principles of Section 141 apply.”

    The same strict statutory boundary was reinforced by this Court in TV

    Today Network Ltd. (supra).

    16. The complainant’s narrative that the petitioner handed over his late

    father’s pre-signed cheques does not save the prosecution under the NI

    Act. Even if true, the petitioner is not the drawer of the cheques, nor is

    the account maintained by him. If a fraud or deception was committed

    by passing off a defunct instrument, the remedy lies under the general
    9
    CRR 3433 OF 2022

    penal provisions for cheating or forgery, not by distorting the strict

    statutory ingredients of a summary cheque-bouncing law.

    17. The precedents relied on by the complainant (Adalat Prasad,

    Subramanium Sethuraman, and the Suo Motu Writ Petition)(supra)

    correctly restrict a subordinate Magistrate from recalling process, but

    they do not restrict the plenary constitutional and statutory powers of

    the High Court under Section 482 of the Code. Similarly, the ruling in

    Rathish Babu (supra) against premature intervention applies to genuine

    factual disputes involving actual directors or signatories. They are

    completely distinguishable from a case like this, where public records

    reveal an absolute statutory vacuum. When a complaint is ex-facie

    barren of the essential ingredients of the offense, the High Court is duty-

    bound to step in. As laid down in the landmark decision in Bhajan Lal,

    (supra):

    “Where the allegations made in the FIR or complaint are so
    absurd and inherently improbable on the basis of which no
    prudent person can ever reach a just conclusion that there is
    sufficient ground for proceeding against the accused… the power
    under Section 482 can be exercised to prevent the abuse of the
    process of any Court.”

    18. The threadbare analysis of the facts and the law leads to the inescapable

    conclusion that the prosecution against the petitioner lacks any legal or

    structural foundation. Allowing this trial to proceed against him would

    be an insult to judicial propriety and a transparent endorsement of

    harassment.

    10

    CRR 3433 OF 2022

    19. On a systematic evaluation of the statutory terrain and the submissions

    advanced, this Court summarizes its definitive conclusions into the

    following short points:

    i. Section 141 of the NI Act does not apply to a sole

    proprietorship. A proprietorship lacks an independent

    corporate personality separate from its owner, and family

    members cannot be held vicariously liable for it.

    ii. A close domestic or familial relationship within a household

    cannot serve as a proxy for a registered partnership deed to

    anchor criminal liability under Section 141.

    iii. Criminal liability under Section 138 is strictly author-centric,

    confining itself to the actual drawer who maintains the

    account. A non-signatory cannot be arrayed as an accused.

    iv. Under Section 201 of the Indian Contract Act, 1872, an

    account mandate stands automatically revoked upon the

    death of the holder. A deceased customer cannot maintain an

    active account, rendering later cheques drawn on it legally

    nonexistent under the Act.

    v. The negotiation of a deceased individual’s pre-signed cheque,

    if deceptive, must be tried under general penal laws for

    cheating or forgery; the strict parameters of the NI Act cannot

    be twisted out of form.

    vi. Procedural restrictions barring a Magistrate from recalling

    process do not curtail the inherent powers of the High Court
    11
    CRR 3433 OF 2022

    under Section 482 of the Code to quash an ex-facie

    groundless prosecution.

    20. The impugned prosecution against the petitioner suffers from a terminal

    structural vacuum as the penal fiction of vicarious liability under

    Section 141 of the NI Act cannot be stretched by judicial implication to

    penetrate a sole proprietorship concern. As settled in Raghu

    Lakshminarayanan (supra) and aligned with Paragraph 61(iv) of N.

    Mamatha Nagesh (supra), a close domestic or filial relationship within a

    household is not a legal substitute for a registered partnership deed.

    21. Furthermore, Section 138 creates a strictly author-centric offense. The

    biological fact of the father’s death in 2017 automatically revoked the

    banking mandate by operation of law under Section 201 of the Indian

    Contract Act, 1872. Since the petitioner is a non-signatory to the

    instruments and does not maintain the account, the primary statutory

    ingredients of Section 138 are completely non-existent as against him.

    Following the rule in Alka Khandu Avhad (supra), a non-signatory

    cannot be prosecuted under the Act.

    22. In the light of the comprehensive discussion tracking the law and facts

    above, this Court arrives at the definitive conclusion that the structural,

    factual, and legal foundations of the complaint are completely non-

    existent as against the petitioner. The criminal machinery has been

    transparently weaponized as an engine of harassment to recover a civilly

    stale debt against an absolute legal stranger.

    23. Accordingly, the instant revisional application being CRR 3433 of 2022,

    is allowed.

    12

    CRR 3433 OF 2022

    24. The impugned order dated 17.12.2021 passed by the Learned 14th

    Metropolitan Magistrate at Calcutta in Complaint Case No. CN/533 of

    2020 is set aside.

    25. The underlying criminal proceedings in connection with Complaint Case

    No. CN/533 of 2020 pending before the Learned 14th Metropolitan

    Magistrate at Calcutta, so far as they relate to the petitioner, Prakash

    Sharma (Accused No. 3), stand quashed.

    26. The petitioner is discharged from his… bail bonds and all restrictive

    interim orders passed against him stand vacated.

    27. The Trial Court Record (T.C.R.) shall be sent down to the learned courts

    below forthwith along with a copy of this judgment for immediate

    compliance.

    28. All connected applications stand disposed of.

    29. Interim orders stand vacated.

    30. There shall be no order as to costs.

    31. Case diary, if any, be returned forthwith.

    32. Urgent photostat certified copy of this judgment, if applied for, be

    supplied to the parties upon compliance with all requisite formalities.

    (Uday Kumar, J.)



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