Back
2010(1) Bankmann 202
(Calcutta High Court)
Before :
HON’BLE PARTHA SAKHA DATTA, J.
Barendra Kumar Bera — Appellant
versus
Santanu alias Chottan Mukherjee — Respondent
C.R.A. No. 837 of 2006, decided on 30.7.2009
(A) Interpretation of Statute—Principles—Commercial community makes frequent use of Negotiable Instruments Act which are the very basis and fiber not only of entire commercial world but of public in general—In order to instill confidence in use of N.R. Act of efficacy of banking transactions provisions has been engrafted in statute with avowed object of protecting an innocent drawer and to punish dishonest one—Person holding an instrument generally makes further commercial commitments on strength of that instrument which if dishonoured would render in upsetting financial circle—Statute has to be applied and interpreted in furtherance of objective of statute not to defeat purpose for which it was enacted. (Para 7)
(B) Negotiable Instruments Act, 1881—Section 138(b)—Dishonour of cheque—Notice—Object of sending a notice is to give a chance to drawer to rectify his omission so as to protect a honest drawer—Object of a notice indicating factum of dishonour of cheque is to give an opportunity to drawer to make payment within 15 days in order that it may not be necessary for payee to proceed against him in any criminal action—Notice u/s 138(b) need not necessarily be signed by payee or holder in due course—An authorised representative or agent of payee or holder in due course may issue notice—Notice has to be read as a whole and an interpretation of its validity should be preferred—Notice cannot be said to be illegal merely because of fact that in concluding part of notice request has been made to pay certain amount of money. (Paras 10 and 14)
(1999) 4 Crimes 221 SC; (2000) 1 Crimes 207—Relied on.
(C) Negotiable Instruments Act, 1881—Section 138(b)—Dishonour of cheque—Appeal against acquittal—Notice contained all ingredients of a requisite notice under Section 138 (b) including entire fact of case of complainant as presented in petition of complaint—Existence of debt, liability of respondent to discharge debt, issuance of cheques, fact of dishonourment, demand to make payment were all given in notice— Notice was properly addressed and stamped and it reached sendee and accepted by him—Respondent did not deny issuance of cheques of amount given in notice—What he denied is amount of loan advanced which could not meet with success in trial—It could not be said that omission to put signature of lawyer in notice is vital and for that notice has to be said invalid or illegal in eye of Law—Court may impose imprisonment in default of payment of compensation—Order of acquittal set aside—Appeal allowed. (Paras 13 to 18)
1999 Cr. LJ 2276; JT (2009) 7 SC 152—Relied on.
1981 KLT 289; 1996 Cr LJ 2264; 2004(2) DCR 233; (2005) 2 CCC 590—Assented to.
(1964) 51 ITR 473 (Cal); AIR 1966 Cal 438; 1999 Cr. LJ 2276; 2002 Criminal 251—Referred to.
Result : Appeal allowed.
Partha Sakha Datta, J.
This is an appeal against the judgment and order of acquittal passed by the learned Additional Sessions Judge, 5th Court Paschim Midnapore passed on 12.5.2006 in Criminal Appeal No. 16 of 2005 reversing therein the judgment and order of conviction and sentence dated 4.10.2005 passed by the learned Judicial Magistrate, 6th Court, Pas-chim Midnapore in C.R. Case No. 558 of 2004 corresponding to T.R. Case No. 487 of 2004 under Section 138 of the Negotiable Instruments Act whereby the learned Magistrate sentenced the O.P. herein to suffer S.I. for one month and to pay Rs. 64,000/- to the complainant by way of compensation. Be it stated in the outset that the respondent has been served with notice on 12.4.2007 as per the report of the process server but the respondent did not turn up to contest the appeal.
2. On 20.9.2004 the respondent issued, towards discharge of debt or liability, a cheque bearing No. SB-00/97 531848 for Rs. 3,000/- and another cheque being No. SB. 00797 531853 for Rs. 60,000/- dated 15.8,2004 drawn on State Bank of India, Midnapore Branch. The appellant deposited the two cheques with his banker, Punjab National Bank, Midnapore Branch on 16.8.2004 which got bounced on 17.8.2004 on account of insufficiency of fund. A statutory notice demanding payment followed on 24.8.2004, which the respondent allegedly received on 30.8.2004. Payment having not been made the complaint was lodged on 20.9.2004.
3. Learned Magistrate took cognizance of offence, issued process, and held trial by examination and cross-examination of the complainant and at the end of the trial recorded conviction against the respondent under Section 138 of the NI Act and passed an order of sentence as above.
4. An appeal was preferred being Criminal Appeal No.16 of 2005 wherein the learned Additional Sessions Judge, 5th Court, Paschim Midnapore by allowing the appeal, set aside the judgment and order of conviction and sentence rendered by the learned Magistrate and thereby acquitted the respondent of the charge.
5. Before the learned Appellate Court three points amongst other points were principally advanced, namely, (1) the statutory demand notice under clause (b) to the proviso of Section 138 of the NI Act did not bear the signature of the lawyer of the complainant thus, the notice becoming a defective one, (2) the cheque numbers have not been mentioned in the notice and (3) the default stipulation to serve S.I. for six months on account of non-payment of the compensation amount was illegal. The first two grounds were accepted by the learned Appellate Court as a result of which appeal came to be allowed.
6. How to interpret the provisions of Negotiable Instruments Act have been laid down by their Lordships of the Supreme Court in C.C. Alavi Hazi v. Palapetty Mohammed & Anr., reported in (2007) 3 S.C.C. (Cr.) 236 in these terms:
“Chapter 17 of the Act originally containing Sections 138 to 142 was inserted in the Act by the Banking, Public Financial Institutions and Negotiable Instruments Laws (Amendment) Act, 1988 with the object of promoting and inculcating faith in the efficacy of banking system and its operations and giving credibility to negotiable instruments in business transaction. The introduction of the said Chapter was intended to create an atmosphere of faith and reliance on banking system by discouraging people from not honouring their commitments by way of payment through cheques. Section 138 of the Act was enacted to punish those unscrupulous persons who purported to discharge their liability by issuing cheques without really intending to do so. To make the provisions contained in the said Chapter more effective, some, more sections were inserted in the Chapter and some amendments in the existing provisions were made. Though, in this reference we are not directly concerned with these amendments but they do indicate the anxiety of the Legislature to make the provisions more result oriented. Therefore, while
An indispensable Tool for Legal Professionals, Endorsed by Various High Court and Judicial Officers
Please visit our Training & Support
Center or Contact Us for assistance
Scan Me!
India’s Legal research and Law Firm App, Download now!
For Daily Legal Updates, Join us on :
Back to top
