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2007 (2) Bankmann 286
CALCUTTA HIGH COURT
Ashim Kumar Roy, J.
Krishna Gupta and Anr. —Petitioners
versus
State of West Bengal and Anr. —Respondents
CRR No. 1119 of 2003
Decided on 23-3-2007
For the Petitioners:Mr. Shekhar Basu, Mr. Joymalya Bagchi, Mr. Jayanta Dutta and Mr. Sonali Dey, Advocates.
For Defacto complainant:Mr. Shataroop Purakayasta, Advocate.
For the State:Mr. Swapan Kumar Mallick, Advocate.
IMPORTANT POINT
Making of the complaint before the expiry of the period within which the accused is statutorily permitted to repay the cheque amount, when not paid at all, would not absolve the accused from his criminal liability for the offence committed under Section 138 of the Negotiable Instruments Act.
Headnote:(i) Negotiable Instruments Act, 1881—Section 138—Dishonour of cheque—Conviction by Courts below—Revision—Cognizance taken before expiry of statutory period contemplated u/s 138(c) of the Act—Whether trial was vitiated?—When no payment was made at all and accused in defence had denied legally enforceable debt or liability, accused could not be said to have suffered any prejudice by initiation of prosecution before expiry of statutory period—Conviction could not be disturbed (Para 9)
(ii) Negotiable Instruments Act, 1881—Section 138—Dishonour of cheque—Cheque was returned unpaid with remarks “account closed”—Cheque was revalidated in May 2000 and account had been closed in March 2000—Dishonour of cheque was covered by penal provision and conviction could not be interfered with. (Para 10)
(iii) Negotiable Instruments Act, 1881—Section 138—Criminal Procedure Code, 1973—Section 357(3)—Dishonour of cheque—Conviction—Sentence—Trial Court imposed sentence of fine of Rs. 5000/- and directed petitioner—Accused to pay Rs. 5 lakhs as compensation to complainant —Sessions Court in appeal set aside sentence of fine and reduced the compensation amount to Rs. 3,90,780/- which was the cheque amount—Revision—No compensation could be awarded without being preceded by imposition of sentence—Impugned order awarding compensation without sentence was liable to be set aside and matter remanded. (Para 12)
Result: Revision disposed of.
Ashim Kumar Roy, J.—The petitioner was convicted under Section 138 of the Negotiable Instrument Act and sentence to pay a fine of Rs. 5,000 in default to suffer simple imprisonment for 3 months and to pay a compensation of Rs. 5 lakhs in a trial held before the learned Sub-Divisional Judicial Magistrate, Alipore, South 24-Parganas. The said order of conviction and sentence was challenged in a Criminal Appeal before the Sessions Court, South 24-Parganas at Alipore and in the said appeal her order of conviction although was confirmed, but the sentence of fine was set aside and the amount of compensation has been reduced to Rs. 3,90,780/-.
In this criminal revision the petitioner challenged the aforesaid judgment and order of the Appellate Court.
2. The trial of the petitioner was held on a charge under Section 138 of the Negotiable Instrument Act before the Learned Sub-Divisional Judicial Magistrate, Alipore, South 24-Parganas in connection with the case No. C-914/2000, on the following allegations,
“The accused Krishna Gupta the proprietor of Krishna Associates Private Limited, the petitioner herein purchased finished leather goods worth of Rs. 3,90,780/- from the company of the complainant and in discharge of such liability the accused issued 4 bearer cheques in favour of the company of the complainant. All the four cheques drawn on Federal bank Limited, Ballygunge Branch were presented for encashment within its period of validity but the said cheques were returned unpaid with the remarks ‘account closed’. Thereafter, the complainant within the statutory period issued a notice under Section 138 (b) of the Negotiable Instrument Act demanding payment of the cheque amount from the accused but inspite of receipt of such demand notice no payment has been made.”
3. In course of trial, the complainant examined three witnesses in support of his case. Although the accused during her examination under Section 313 of the Code of Criminal Procedure expressed her intention to examine witness in her defence but examined none inspite of sufficient opportunity given to her by the Trial Court.
4. Mr. Joymalya Bagchi, the Learned Advocate appearing on behalf of the petitioner challenged the order of conviction of the petitioner on the grounds,
a) The order of conviction has been vitiated since the Learned Court below took cognizance of the offence before the expiry of 15 days from the date of receipt of demand notice, i.e. before the cause of action arose.
b) The cheques in question are all dated April 7, 1999 and was revalidated on May 2,2000, but the account on which such cheque was drawn were closed on and from March 28, 2000. As such it cannot be said the said cheques were drawn on an existing account and accordingly no offence under Section 138 of the N.I. Act can said to have been made out.
c) The liability of the accused persons against the cheques in question was never proved.
d) The cheques if at all were issued against running transaction and not against any specific transaction.
e) Before the presentation of the cheques in the bank the petitioner by a letter in writing requested the complainant not to present the same for encashment.
f) Mr. Bagchi in course of his submission relied on the following decisions,
i) Ashok Hegde v. Jathin V. Attawan.1
ii) Sardar Singh v. Karam Singh.2
iii) Chittoor Dist. Cooperative Marketing Society Ltd. v. Sri Jyoti Trading Company & Anr.3
6. Mr. Sataroop Purakayasta, the Learned Advocate appearing on behalf of the complainant strongly refuted the correctness of the submissions made by Mr. Bagchi and relied on the following decisions,
i) NEPC Micon Ltd. & Others v. Magma Leasing Ltd.4
ii) Narsingh Das Tapadia v. Goverdhan Das Partani & Another.5
Mr. Swapan Kumar Mallick, the Learned Advocate appearing on behalf of the State supported the contention of the Learned Advocate of the opposite party No. 2.
7. This is a criminal revision against the order of conviction upheld in appeal. It
