Judicial Analysis Court Copy Headnote Facts Arguments Court observation

CALCUTTA HIGH COURT
Tirthankar Ghosh, J.
Subrata Bose – Appellant
versus
Mithu Ghosh – Opp. Party
CRA 685 of 2018
Decided on 7.11.2022

Counsel for the Parties:
For the Appellant:Mr. Niladri Sekhar Ghosh, Ms. Srimoyee Mukherjee, Ms. Sampurna Chatterjee and Mr. Sourav Mondal, Advocates
For the State:Ms. Faria Hossain and Ms. Mamata Jana, Advocates
For the Opposite Party:Mr. Debasis Kar and Mr. Arka Tilak Bhadra, Advocates

IMPORTANT POINT
Dishonour of cheque – It cannot be a probable defence that complainant has no capacity to pay money until and unless initial defence is set up by a reply notice or accused examines his witnesses and relies upon documentary evidence.

Headnote:
Negotiable Instruments Act, 1881 – Sections 138 and 139 – Criminal Procedure Code, 1973 – Section 378 – Dishonour of cheque – Reversal of order of conviction and sentence – Test of proportionality in such cases must guide determination of issue of rebuttal – What is required for accused to do in such case is to raise a probable defence – It cannot be a probable defence that complainant has no capacity to pay money until and unless initial defence is set up by a reply notice or accused examines his witnesses and relies upon documentary evidence – No materials have been produced to show as to how cheque was in possession of complainant – Judgment and order of acquittal passed by Additional Sessions Judge set aside and judgment and order passed by Judicial Magistrate confirmed. (Paras 15, 16 and 17)
Result: Criminal Appeal allowed.

JUDGMENT

Tirthankar Ghosh, J.—The present appeal has been preferred against the judgment and order of acquittal dated 05.09.2018 passed by the learned Additional Sessions Judge, FTC-3rd Court, Barrackpore in connection with Criminal Appeal No. 6/2017 wherein the Appellate Court reversed the order of conviction and sentence passed by the learned Judicial Magistrate 5th Court, Barrackpore in C-Case no.466/2009 (TR Case no. 324/09) under Section 138 of the Negotiable Instruments Act.

2. The complainant/appellant filed a complaint before the learned ACJM, Barrackpore alleging commission of offence punishable under Section 138 of the Negotiable Instruments Act (hereinafter referred to as ‘N.I. Act’) against the accused/respondent namely Mithu Ghosh. The allegations made in the petition of complaint were to the effect that the complainant and the accused had business relationship and as such they were known to each other. The accused was chairperson of M/s. Sun Creative Images Pvt. Ltd. and on or about 25.06.07 the complainant entered into an agreement for telecasting a serial ‘Ghatak’ in Sun TV Bangla. It was agreed by and between the parties that there were number of episodes and each episode was of 23½ minutes. For the said purpose as security deposit a sum of Rs.3,00,000/- was tendered. A further sum was demanded by the accused in order to incorporate the TV channel namely Sun TV Bangla, which the complainant collected from his friends and gave him with a hope that his serial ‘Ghatak’ would be telecast. It has been alleged that from 26.06.2008 to 12.12.2008 on different dates the complainant paid by cash a sum of Rs.9,70,000/-. In discharge of such debt and legal liability the accused issued an account payee cheque in favour of the complainant for a sum of Rs.9,70,000/- bearing Cheque No. 767432 dated 12.12.08 drawn on Punjab National Bank, G.T. Road Branch, Burdwan. The said cheque was presented several times i.e. on 12.12.08, on 01.01.09, on 27.04.09 and on 14.05.09 and on each occasion the same was dishonoured with the endorsement ‘fund insufficient’. Lastly the cheque was presented with the complainant’s banker i.e. United Bank of India, Titagarh Branch on 08.06.09 which was dishonoured vide return memo dated 09.06.09 issued by Punjab National Bank, 18, N.S. Road, Kolkata-1, Branch with the endorsement ‘fund insufficient’ and the bank return memo along with the dishonoured cheque was received by the complainant on 09.06.09. The complainant sent notice of demand by registered post with A/D dated 23.06.09 through his learned Advocate demanding the amount of Rs.9,70,000/- within 15 days from the date of receipt of the notice. The said notice/letter was sent on23.06.09 vide postal receipt no. 2981 dated 23.06.09 which was returned with postal remarks ‘absence’ or ‘refused’ on 02.07.09 and was received by the learned Advocate for the complainant on 14.07.09. The complainant alleges that the accused refused to accept the notice and neglected to pay the amount covered by the dishonoured cheque and as such made herself liable for commission of offence punishable under Section 138 of the Negotiable Instruments Act.

3. On such complaint being filed before the learned ACJM, Barrackpore, cognizance of the offence was taken and the case was transferred to the Court of the learned Judicial Magistrate, 5th Court, Barrackpore for trial and disposal. Process was issued after considering the initial evidence under Section 200 of Code of Criminal Procedure and under Section 145 of the N.I. Act. The accused appeared before the Court and he was thereafter examined under Section 251 of the Code of Criminal Procedure and the substance of the acquisition was read over to her to which she pleaded not guilty and claimed to be tried.

4. Records of the case reflect that the sole witness examined in this case is the complainant himself as PW1. The defence did not tender any witness. Number of documents were relied upon by the prosecution which incl