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CALCUTTA HIGH COURT
Kanchan Chakraborty, J.
Nikhil Chandra Mitra —Appellant
versus
The State of West Bengal
and Anr. —Respondents
C.R.A. 273 of 2012
Decided on 27.07.2012
IMPORTANT POINT
A combined notice, ipso facto is not illegal.
Headnote:(i) Negotiable Instruments Act, 1881—Section 138—Dishonour of cheque—Notice—A combined notice, ipso facto is not illegal—Notice of cheque which is well within period of 30 days as envisaged in Clause (b) of Section 138 of N. I. Act, is to be given effect to—Two cheques were specifically mentioned in notice with date and amount distinctly—This notice cannot be said to be an omnibus nature of notice or a notice wherein demand has not been made specifically—One notice was not in conformity with Clause (b) of Section 138 of N. I. Act because information of dishonour of cheque was received more than a period of 30 days from date of issuing notice—That fact does not necessarily invalidates notice in respect of second cheque mentioned specifically with date and amount in notice—Same was within period as specified in Clause (b) of Section 138—View of Trial Court in this regard is correct. (Paras 8 to 11)
(ii) Negotiable Instruments Act, 1881—Section 138 read with Sections 118 and 139—Criminal Procedure Code, 1973—Section 378—Dishonour of cheque—Acquittal—Trial Court came to findings that appellant failed to establish that cheques were issued by respondent in discharge of any debt or liability enforceable in law—For a transaction of Rs.11 Lakhs, no businessman would suppose to issue cheques of Rs.8 Lakhs as securities—This is neither practical nor believable—Presumption under Section 139 is to be drawn in favour of holder of cheque and not in favour of drawer of cheque—Presumption is rebuttable and for rebutting such presumption, sufficient evidence is required—When cheques duly signed by respondent were placed and respondent admitted that those were his signatures and filled in by person of his office, burden on part of complainant can be said to have been discharged—Court should give complainant/appellant opportunity to produce such documents which has been asked to be produced by his opponent in trial—Rebuttal by proving contrary to presumption by mere denial is not enough—Impugned judgment set aside and case remitted to Trial Court for fresh decision. (Paras 11 to15)
Kanchan Chakraborty, J.—The challenge in this appeal is to the judgment and order dated 14.7.2009 passed by the learned Chief Judicial Magistrate, North, 24-Paraganas, Barasat in C.763 of 2006 thereby acquitting the respondent no.2 Nishikanta Saha from the charge under Section 138 of the N.I. Act.
2. The appellant, Nikhil Chandra Mitra lodged the complaint in the Court and had initiated the case against the respondent no.2 under Section 138 of the Negotiable Instrument Act. The judgment impugned has been assailed, mainly, on the following grounds:
a) that the learned Magistrate erred entirely that the presumption can be drawn adversely against the holder of the cheque;
b) that the learned Court failed to appreciate the facts and circumstances of the case and the evidence in its true and proper perspective;
c) that the learned Court wrongly shifted the onus to prove on the appellant;
d) that the learned Court failed to give the appellant an opportunity to produce the documents which he wanted to file in course of trial in support of his case;
(e) that the judgment impugned being otherwise bad in law, is liable to be set aside.
3. The appellant, Nikhil Chandra Mitra lodged a complaint before the learned Magistrate alleging therein that both he and the respondent no.2 had business transaction with each other. The appellant supplied rice to the respondent no.2 who in discharge of said liability in part, issued two account payee cheques bearing No.713701 dated 6.3.2006 of Rs.6 lakhs and cheque bearing No.562670 dated 29.3.2006 of Rs.2 lakhs. The said cheques were presented by the appellant in his Bank U.T.I. Bank Ltd., Baguihati Branch within the valid period. Both the cheques were returned dishonoured with remarks “excess arrangement” and “full cover not received”. The cheques were returned by return memo dated 7.3.2006 and 4.7.2006, respectively.
4. The appellant sent a legal notice through his lawyer on 14.7.2006 for those two cheques to the respondent no.2 demanding the cheque amount of Rs.6 lakhs and Rs.2 lakhs totalling Rs.8 lakhs within 15 days from the date of receipt of the notice. The respondent no.2 received the notice on 21.7.2006 but failed to make payment as demanded. Accordingly, the appellant herein lodged the complainant in the learned Court of the Magistrate for prosecuting the respondent no.2 under Section 138 of the N.I. Act.
5. The respondent no.2 was arrayed to face the charge under Section 138 of the N.I. Act to which he pleaded not guilty and accordingly, the trial commenced. The appellant was examined as P.W.1. The cheque dated 6.3.2006 bearing No.713701 of Rs.6 lakhs was marked Ext.1 and the return memo received from Bank dated 7.3.2006 in respect of that cheque was marked Ext.2. The another cheque dated 29.3.2006 of Rs.2 lakhs was marked as Ext.3 and the return memo of the Bank dated 4.7.2006 in respect of that cheque was marked as Ext. 4. The postal receipt and the A/D card in respect of demand notice and the copy of the demand notice were also admitted into evidence and marked Exts.5, 6 and 7, respectively. The complainant examined himself as P.W.1. No witness was examined on behalf of the respondent no.2. But one document was filed on behalf of the respondent, which was marked Ext.A. Ext.A is the copy of the letter written by the Advocate for the respondent no.2 to the appellant Nikhil Chandra Mitra directing him to produce certain documents. The said letter dated 3.6.2009 was issued in course of trial. The learned Court upon consideration of the facts and circumstances of the case, came to a findings that the appellant failed to establish that the cheques in dispute were issued by the respondent no.2 in discharge of any debt or liability enforceable in law. Accordingly, the learned Magistrate recorded acquittal, which has been impugned in this appeal on the grounds already stated above.
6. Mr. Mukherjee, learned Counsel for the appellant contended that there is no legal impediment to
