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,
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.
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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
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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
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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-
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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
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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
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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.
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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
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CRR 3433 OF 2022under 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.
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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.)
