Sen, J.

1. This rule was obtained by Sunil Chandra Banerjee aliasSunit Kumar Banerjee who is the Manager of the Behala Branch of the DarjeelingBank.

2. The facts which need be mentioned for the disposal ofthis rule briefly are as follows: The complainant Krishna Chandra Nath filed apetition of complaint against Sunil Chandra Banerjee stating that thecomplainant had a current account with the Bank and had issued a cheque on theBank for Rs. 5620 and odd for payment to the Bengal Textile Association. TheTextile authorities sent back the cheque as it was dishonoured and thecomplainant had to pay cash. He then went to Sunil Kumar Banerjee and told himabout this and Sunil Banerjee said that it was necessary always for thecomplainant to have a cash balance of Rs. 200 in the Bank and that as there hadnot been Rs. 5820 and odd in the Bank to his credit the cheque had been dishonoured.He asked the complainant to deposit Rs. 200 more and said that if this weredone, the cheque would be honoured. The complainant deposited the sum of Rs.200 on 17th December 1946 and he also deposited the cheque in the Bank with theManager. The complainants case is that at that time the Bank had already goneinto liquidation and had he known that he would not have made the deposit ofRs. 200. He accordingly charged the accused petitioner with having committedoffences punishable under Ss. 403, 406 and 420, Penal Code. A warrant wasissued against the petitioner. The criminal proceedings, however, were notproceeded with because of an order passed by Das J. in a company matter wherebythese proceedings were stayed till the disposal of an application for thesanction of a scheme of amalgamation in respect of the Darjeeling Bank. Thatapplication was disposed of on 5th May 1947 by Edgley J. Thereafter thecriminal proceedings were continued, some witnesses were examined and thepetitioner was charged with having committed the offence of cheating.

3. The petitioner now applies for the quashing of the saidproceedings on various grounds. The first ground is that the proceedings couldnot continue by reason of the provisions of S. 171, Companies Act, as anofficial liquidator had been appointed and as no leave had been taken of theCourt to continue the criminal proceedings. The next ground taken was that thecomplainant was given an opportunity for having the stay order vacated but ashe did not apply to have the order vacated the continuance of the proceedingswithout vacating the stay order was without jurisdiction. The next objectionsrelated to the merits of the case and it was contended that the evidence doesnot disclose an offence of cheating.

4. As regards the ground that the evidence does not disclosean offence of cheating I am of opinion that it cannot be sustained at thisstage. There is evidence on the record of the representation made by theaccused that the cheque would be honoured on the deposit of the sum of Rs. 200by the complainant. There is also evidence that at the time when the statementwas made by the accused to the complainant the Bank was already in liquidationand it was not possible for the cheque to be honoured. These facts aresufficient to entitle the Court to draw up a charge. I am not, however, in anyway suggesting that the offence has been proved. That will have to be decidedafter all the evidence is taken in the case.

5. As regards the objection that the complainant had notobtained an order for vacating the stay order passed by Das J. there is nosubstance. The criminal proceedings were actually stayed in accordance with theorder passed by Das J. The order was that there should be a stay of allproceedings till the disposal of the application for the sanction of the schemeof amalgamation. The criminal proceedings were revived only after the stayorder had spent its force by reason of the disposal of the application for thesanction of the scheme of amalgamation by Edgley J.

6. The only question that remains for decision is whetherthe point taken that the criminal case should not have been proceeded with byreason of the provisions of S. 171, Companies Act, is sustainable. That sectionis in the following terms:

When a winding up order has been made or a provisionalliquidator has been appointed, no suit or other legal proceeding shall beproceeded with or commenced against the company except by leave of the Court,and subject to such terms as the Court may impose.

For the section to apply it must be held that the presentproceedings are against the company or against the Bank. In my opinion thepresent criminal proceedings are not against the Bank but against the accused,the Manager of the Behala Branch. It is true that the accused was acting as theManager of the Bank at the time that he made the representation. This fact mayrender the Bank civilly liable, but I cannot see how it can be said that theseproceedings are against the Bank it self. I do not see how a bank can becharged with cheating. The Bank is a person, but it is a juridical person andnot an actual person. The Bank is such that it cannot be said to have the mensrea requisite for the offence of cheating. The Bank as such cannot be punishedfor cheating because it has no physical body. The proceedings were, therefore,not against the Bank but against the petitioner as Manager of the Bank. Thatbeing so, S. 171, Companies Act, does not apply.

7. In these circumstances I see no reason to interfere withthe progress of the case and I, therefore, discharge this rule.

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Sunil Chandra Banerjeevs. Krishna Chandra Nath(26.08.1948 - CALHC)