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2003 DIGILAW 285 (CAL)

O. N. Goenka v. State of West Bengal

2003-06-12

Pradip Kumar Biswas

body2003
JUDGMENT Pradip Kumar Biswas, J. Parties are present before me. Heard them at length. 2. This is an application under section 482 of the Code of Criminal Procedure filed at the instance of O.N. Goenka, the petitioner herein, seeking to set aside the order dated 20.5.2002 passed by the learned Judge, City Sessions Court, 12th Bench, Calcutta, in connection with Criminal Revision No. 30 of 2002 whereby he was pleased to confirm the order dated 6th February, 2002 passed by the learned Metropolitan Magistrate, 8th Court in connection with Case No. C-560/98 pending before the learned Metropolitan Magistrate, 8th Court whereby the learned Magistrate directed the petitioner to appear personally before the Court and express his consent to represent the accused No. 1, M/s. Premier Vinyl Flooring Ltd. 3. The short facts leading to the filing of this application are as under : 4. The present petitioner is an old and ailing person aged about 73 years and leads a completely sedentary life at his residence at Faridabad within the State of Haryana and at the same time he was also suffering from hypertention, ischaemic heart disease etc. 5. It has been alleged that on 24.2.98 the opposite party No. 2 filed a complaint against the petitioner and 10 others before the Court of the learned Chief Metropolitan Magistrate, Calcutta, under section 138 read with section 141 of the N.I. Act. On receipt of the same, the learned Magistrate took cognizance and transferred the file before the learned Metropolitan Magistrate, 8th Court for inquiry and trial. 6. On 7.3.98 the transferee Magistrate after examining the opposite party No. 2 issued process against the petitioner and other accused persons fixing the date on 8.6.98 for their appearances. 7. On 8.6.98 one petition was filed under section 305 of the Code of Criminal Procedure by one Pijush Kanti Dutta to represent the accused No. 1 (company) which was eventually allowed and the petition filed under section 205 of the Code of Criminal Procedure on behalf of the present petitioner as accused No. 10 along with others were allowed. 8. On 8.6.98 one petition was filed under section 305 of the Code of Criminal Procedure by one Pijush Kanti Dutta to represent the accused No. 1 (company) which was eventually allowed and the petition filed under section 205 of the Code of Criminal Procedure on behalf of the present petitioner as accused No. 10 along with others were allowed. 8. On 12.8.99 an application under section 483 of the Code of Criminal Procedure was moved by the opposite party No. 2 before the Hon'ble Court and the same was disposed of by Hon'ble Justice Amit Talukdar by directing the learned Magistrate to dispose of the entire proceeding within a fixed time and the learned Magistrate was directed to follow the time schedule i.e. to conclude the trial within a span of 30 days from the date of receipt of the order. 9. Again, after a lapse of considerable time, on 7.3.2000 the opposite party No. 2 moved another revisional application being CRR No. 561 of 2000 before the Hon'ble Court and the same was also disposed of by Justice Amit Talukdar by an order dated 7.3.2000 directing the learned Trial Magistrate to conclude the trial within three weeks from the date of communication of the said order. 10. On 17.4.2000 the accused No. 3, M.K. Vig moved one application under section 401/482 of the Code of Criminal Procedure before the Hon'ble Court against the order dated 12.4.2000 passed by the learned Magistrate rejecting the prayer of the accused persons for adjournment of cross-examination of opposite party No. 2's witnesses. The said application was finally heard and disposed of by Justice Arunabha Barua on 18.6.2001 when His Lordship was pleased to set aside the aforesaid order dated 12.4.2000 passed by the learned Magistrate and directed the learned Magistrate to conclude the trial in accordance with law positively within two months from the date of receipt of the order. 11. The said application was finally heard and disposed of by Justice Arunabha Barua on 18.6.2001 when His Lordship was pleased to set aside the aforesaid order dated 12.4.2000 passed by the learned Magistrate and directed the learned Magistrate to conclude the trial in accordance with law positively within two months from the date of receipt of the order. 11. Again, on 4.12.2001 Pijush Kanti Dutta who was so long representing accused No. 1 filed a petition through his learned Advocate that he does not want to represent the accused No. 1 and again on 11.12.2001 the said Pijush Kanti Dutta filed another petition for exonerating him from representing accused No. 1 and on the self-same date the opposite party No. 2 also filed an application stating that when the representative of accused No. 1 does not intend to represent accused No. 1, the court may, in terms of the decision reported in 2001 C.Cr. LR (Cal) 240, direct the accused No. 2, the Chairman of the accused company or accused No. 10, the Managing Director of the accused company to represent the accused company under section 305 of the Code of Criminal Procedure and in default to split the trial. The learned Magistrate by his order dated 11.12.2001 allowed the prayer and released the representative Pijush Kanti Dutta from his responsibility to represent the accused company and fixed the date on 11.12.2001 for hearing the petition filed by the opposite party No. 2. 12. On 21.12.2001 another application was filed on behalf of the present petitioner stating that he has ceased to be the Managing Director of the company, M/s. Premier Vinyl Flooring Ltd. on resignation with effect from 11th December, 1998 and in view of the aforesaid circumstances the petitioner clearly expressed his unwillingness to represent the accused No. 1 company in course of the said proceeding. 13. After hearing the learned Advocates of both parties, the learned Magistrate by his order dated 6.2.2002 allowed the petition dated 11.12.2001 filed by the opposite party No. 2 and directed the accused No. 10, the petitioner herein, to appear personally before the Court on 22.2.2002 and express his consent to represent the accused No. 1, M/s. Premier Vinyl Flooring Ltd. under section 305 of Cr. P.C. 14. Being aggrieved by the aforesaid order, the petitioner has come up before this forum praying for setting aside of the order. 15. P.C. 14. Being aggrieved by the aforesaid order, the petitioner has come up before this forum praying for setting aside of the order. 15. I have heard the learned Advocates of both sides representing the parties and also perused the several orders passed in connection with the present litigation between the parties. 16. Section 305 sub-clause (2) authorises the company itself or the corporation or the body corporate which may appoint its own representative for the purpose of the enquiry or trial and such appointment need not under the seal of the corporation. 17. Here in connection with this case initially one Mr. Pijush Kanti Dutta offered himself to represent the company for quite a long time in this proceeding and ultimately on 4.12.2001 he filed one application intimating the fact that he does not want to represent the accused No. 1 company any more and which was eventually allowed by the learned Magistrate by his order dated 11.12.2001. Subsequently, upon an application filed by the opposite party No. 2 dated 11.12.2001 the learned Magistrate directed the present accused petitioner to appear personally before the Court on 22.2.2002 and express his consent to represent the accused No. 1 company. 18. The petitioner has challenged the aforesaid order on two grounds, alleging that he was allowed to be represented under section 205 of the Code by his learned Advocate in consideration of his previous aliment and at that time he was leading a completely sedentary life at his residence at Faridabad and secondly, he has intimated the Court that he has ceased to be the Managing Director of the company, M/s. Premier Vinyl Flooring Ltd. on resignation with effect from 11th December, 1998. 19. From the aforesaid two facts, it is sufficiently clear that this petitioner does not want to represent the company for cogent reason and in such a situation hardly there is any provision in the Code itself compelling him to represent the company despite his clear objection in the matter. 20. 19. From the aforesaid two facts, it is sufficiently clear that this petitioner does not want to represent the company for cogent reason and in such a situation hardly there is any provision in the Code itself compelling him to represent the company despite his clear objection in the matter. 20. That being the position, upon consideration of the entire materials and the chequered nature of the case, I am very much inclined to interfere with the impugned order itself passed by the learned Magistrate directing this accused petitioner to appear before the said Court personally to express his consent whether or not he wants to represent the company and in that view of the fact the aforesaid portion of the order stands set aside. 21. But from the materials available, it has become clear that there has been delay in concluding the trial itself for various reasons and for which I could really appreciate the anxiety of the opposite party No. 2 for carriage of the present proceeding upto its end. 22. For such reasons and to obviate further difficulties with regard to the progress of the trial, I like to put it on record that while setting aside the portion of the aforesaid order as indicated above, I direct the learned Magistrate to invoke the provision of section 63 of the Code of Criminal Procedure for inviting the attention of the accused No. 1 to select its representative for the purpose of conclusion of the present trial and if within one month from the date of receipt of such notice, no steps is taken by the company for appointing his representative in this case, in such event, the learned Magistrate shall proceed in accordance with the provision of section 305(4) of the Cr.P.C. without insisting upon the company for selecting his representative further in connection with this case. 23. Let it also be made clear that the entire process must have to be completed including the conclusion of the trial by the learned Magistrate positively within a period of three months from the date of communication of this order by either on the parties. 24. With this observation, the revisional application stands disposed of. 25. Urgent xerox certified copy of this order, if applied for, be given to the parties with utmost expedition. Appeal disposed of with observation.