SHORT NOTE
CALCUTTA HIGH COURT
Siddhartha Roy Chowdhury, J.
Susanta Mondal – Appellant
versus
State of West Bengal and Anr. – Respondents
C.R.R. 1117 of 2021
Decided on 28.4.2023

IMPORTANT POINT
Dishonour of cheque by bank on the ground that cheque was dishonoured under instruction of drawer of cheque to stop payment, would be covered by Section 138 of Negotiable Instruments Act, 1881.

Headnote:

Negotiable Instruments Act, 1881 – Sections 138, 139 and 140 – Dishonour of cheque – Conviction and sentence – Initial burden that lies upon complainant, is to be discharged by credible evidence – Once initial burden is discharged, burden would shift upon accused person to prove the contrary that cheque was not issued in discharge of any liability or debt – In a criminal proceeding accused person does not have any obligation to prove any point beyond reasonable doubt – However, under Section 139 of N.I. Act reverse burden was upon accused person – Dishonour of cheque by bank on the ground that cheque was dishonoured under instruction of drawer of cheque to stop payment, would be covered by Section 138 – Accused person has failed to discharge onus of reverse burden as laid down under Section 139 of N.I. Act – Pleas taken by accused person at different point of time are found to be mutually contradictory and became perilous to interest of accused person – Impugned Judgment affirmed.

Held: Section 139 of the N.I. Act envisages that unless contrary is proved it should be presumed that the holder of the cheque received the cheque of the nature referred to Section 138 of the N.I. Act for discharge in whole or part of any debt or liability. Therefore, the initial burden that lies upon the complainant, is to be discharged by credible evidence indicating that cheque was issued by the accused person and once the initial burden is discharged, the burden would shift upon the accused person to prove the contrary that the cheque was not issued in discharge of any liability or debt.

It goes without saying that in a criminal proceeding an accused person does not have any obligation to prove any point beyond reasonable doubt. An accused person enjoys the liberty to propagate any narrative in defence, that may be probable or improbable even at his own peril. Here under Section 139 of the N.I. Act the reverse burden was upon the accused person. At one point of time the accused person took the plea that he never placed any order to the complainant to supply Basmati rice. Therefore, he had no obligation to pay. But Exhibit-D runs contrary to such plea taken by the accused person in paragraph 4 of the petition under consideration wherein it is adverted as follows: –

“Further the petitioner stated that he had no business transaction with the opposite party no. 2 and is not familiar with the opposite party no. 2. He has not issued any order to the opposite party no. 2 for supply of rice. Further the petitioner added that the opposite party no. 2 willfully and voluntarily godowned the rice in question in the public godown at market place without taking any consent from the petitioner herein. The petitioner further stated that after the lapse of three months from the date of alleged delivery of the said rice he had come to learn about the keeping of the said rice in the godown at Khidderpore which was open and was not safe for storage of the rice. When the representative of the opposite party no. 2 claimed signed blank cheque from him as security for the payment of the delivery of the alleged rice, as such he was compelled to put his signature on the cheque in question and handed over those cheques to the representative of the opposite party no. 2 with a request not to encash the said cheque without his consent from him.”

The Exhibit-D demonstrates that rice was delivered and received on 19th June, 2009. The cheque was given on 15th September, 2009. There is nothing to indicate that in between, the accused person raised the issue pertaining to the quality of rice he received. From the attending facts and circumstances, it is admitted that cheque was issued by the accused person and he instructed the bank not to honour the cheque.

Hence, upon conjoint reading of Section 138 and 140 of the N.I. Act it would be clear that dishonour of the cheque by bank on the ground that the cheque was dishonoured under the instruction of the drawer of the cheque to stop payment, would be covered by phrase the amount of money standing to the credit of the account is insufficient to honour the cheque unless, of course it is proved that on the date of issuance of cheque and on the date of instructing the bank not to honour the cheque, the drawer of the cheque had sufficient amount to honour the cheque to the credit of that account. No such document was produced by the accused person to prove that there was sufficient money in his account to honour the cheque and because of certain other reasonable cause he instructed the bank not to honour the cheque. Therefore, I am of the view that the accused person has failed to discharge the onus of reverse burden as laid down under Section 139 of the N.I. Act. The pleas taken by the accused person at different point of time are found to be mutually contradictory and became perilous to the interest of the accused person.Under such circumstances, I am of the view that the judgment impugned does not warrant any interference. The revisional application does not merit any consideration and is dismissed however, without cost. The petitioner is to comply with the direction of the learned Trial Court within 30 days from date (Paras 12, 16, 18 and 19)

Result: Criminal Revision Application dismissed.