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CALCUTTA HIGH COURT
Bibek Chaudhuri, J.
Radhamani India Limited —Appellant
versus
Basukinath Food
Processors Limited and Anr. —Respondents
C.R.A 130 of 2021
Decided on 9.6.2022
For the Appellant:Mr. Somopriya Roychowdhury, Mr. Anirban Dutta, Ms. Priyanka Mukherjee and Mr. Dwip Raj Basu, Advocates
For the Respondents:Mr. Ayan Bhattacharjee, Mr. Aditya Ratan Tiwary and Ms. Sutapa Mitro, Advocates
IMPORTANT POINT
Dishonour of cheque – No notice is additionally contemplated to be given to Directors of company.
Headnote:
Negotiable Instrument Act, 1881 – Sections 138(b) and 141 – General Clauses Act, 1897 – Section 27 – Criminal Procedure Code, 1973 – Section 378(4) – Dishonour of cheque – Appeal against acquittal – Alleged non-service of notice upon respondents/accused persons – Magistrate committed error in holding that no notice was served upon accused No.1/company for reason that name of accused No.1/company and its address was recorded in postal receipt issued by post office to sender of notice – Correct address is a question of fact to be determined from copy of notice and postal track report – Copy of notice contains correct address of accused No.1/company – Postal track report shows that it was duly served upon accused/company – Accused person who is in charge of affairs of company and running its affair must naturally be aware of notice of demand under Section 138 of Act issued to such company – No notice is additionally contemplated to be given to Directors of company – Judgment and order of acquittal passed in favour of respondents No.1 and 2 set aside – Lower court record of complaint case sent to Court of Metropolitan Magistrate to record conviction and order of sentence against respondents. (Paras 30, 31, 32, 35 and 36)
Result: Appeal allowed.
JUDGMENT
Bibek Chaudhuri, J.—The judgment and order of acquittal passed in complaint case No. C-16191 of 2013 passed by the learned Metropolitan Magistrate, 3rd Court, Kolkata have been assailed in the instant appeal on the ground that the learned Magistrate erred in law and fact holding, inter alia, that notice under Section 138(b) of the Negotiable Instrument Act, 1981 was not served upon the respondents/accused persons.
2. The factual matrix leading to filing of the instant appeal is that in discharge of legally enforceable liability the respondent No.2 being one of the directors and authorized signatory of the respondent No.1/company issued a cheque amounting to Rs.20 lakhs on 15th March, 2013 drawn on Axis Bank Limited, Barabazar Branch, Kolkata in favour of the complainant/company on 15th March, 2013. The said cheque was deposited for encashment with the banker of the complainant/company, but it was dishonoured on the ground “funds insufficient” on 16th March, 2013. This led the complainant to issue a notice through his learned Advocate on 11th April, 2013 and 16th April, 2013 respectively requesting the respondents to make payment of the said sum of Rs.20 lakhs within a period of 15 days from the date of receipt of the respective notices. The respondents neglected and refused to pay the said sum of Rs.20 lakhs in spite of receipt of demand notice. So was the complaint under Section 138 of the Negotiable Instrument Act was initiated.
3. During trial, authorized representative of the complainant/company was examined. Copy of notice under Section 138(b) of the Negotiable Instrument Act, postal receipt and postal track report in respect of respondent No.1/company were exhibited.
4. The learned Magistrate, on completion of trial dismissed the said complaint case and acquitted the respondents under Section 255(1) of the Code of Criminal Procedure holding, inter alia, that the notice demanding payment of the impugned cheque was not legal, valid and sufficient and it was not duly served upon the accused persons.
5. Assailing the said judgment the complainant has filed the instant appeal under the provision of Section 378(4) of the Code of Criminal Procedure.
6. Learned Advocate for the appellant submits before me that the impugned cheque was issued in discharge of legally enforceable liability by the respondent No.2 on 15th March, 2013. It was presented with the banker of the complainant/company, viz., IndusInd Bank, Upper Wood Street Branch, Kolkata on the very date of receipt of the said cheque. However, the cheque was dishonoured on the ground “funds insufficient” and accordingly the complainant/company issued demand notice upon accused No.1 and accused No.2 on 11th April, 2013 and 16th April, 2013 respectively under registered speed post. From the postal track report it appears that the said notices were served upon the respondents/accused persons on 12th April, 2013 and 17th April, 2013 respectively. From the copy of the notice which was marked as Exhibit-5 it appears that the said notice was issued and sent to the respondents/company in its correct address. The learned Magistrate committed a gross mistake on the basis of postal receipt (Exhibt-5/1) where the name of the complainant/company is recorded as “Basukinath F Pero Limited, Topsia Road, Kolkata, Pin-700046”. According to the learned Advocate for the appellant the postal receipt issued by the postal authority in respect of a registered post is an acknowledgement of the fact that a document is sent to the drawer under registered speed post with AD. It is not in dispute that the address of the respondent No.1/company was correctly recorded in the copy of the notice dated 11th April, 2013. The notice was sent to the respondents/company in the address mentioned in the notice. In the postal receipt the name and address of the respondent/company was recorded by the concerned clerk of the GPO, Kolkata. In the postal receipt, there may be some mistake while recordin
