IMPORTANT POINT
Failure to make payment in due discharge of liability may be dealt with in form of financial punishment.

Debi Prosad Dey, J.—This is an application under Section 482 of the Code of Criminal Procedure challenging the order passed by learned Session Judge, Hooghly in criminal appeal no. 18 of 2015 arising out of CR case No. 256 of 2006 under Section 138 of Negotiable Instrument Act whereby and where under learned Sessions Judge has affirmed the conviction and sentence awarded against the appellant by learned Judicial Magistrate, 5th Court, Hooghly in CR no. 256 of 2006.

2. The fact of the case is that the appellant issued a cheque of Rs.1,50,000/in favour of the complainant but the said cheque was dishonoured on presentation on the ground that the account was closed by the appellant. Notice was duly served upon the appellant but no reply was given by the appellant against the said notice. Thereafter, a petition of complaint was filed under Section 138 of the Negotiable Instrument Act and after completion of trial learned Sessions Judge convicted the appellant for the offence under Section 138 of the Negotiable Instrument Act and sentenced him to undergo rigorous imprisonment for two years and to pay a fine of Rs.3,00000/in default to suffer simple imprisonment for another six months. Learned Advocate appearing on behalf of the appellant contended that there was no existing liability at the time of alleged issuance of cheque by the appellant and in fact a blank cheque was handed over to the complainant by the appellant as a colateral security. Secondly, the appellant never signed on the cheque and learned trial Court without adhering to the specific plea of the appellant and without examining the cheque with the help of handwriting expert erroneously came to a finding that the cheque was actually issued by the appellant. It is further submitted that the first appellate Court did not consider the evidence on record inadvertently and did not come to a specific finding after evaluation of the evidence on record and accordingly the judgment passed by learned appellate Court ought to be set aside. Mr. Chatterjee, learned Advocate appearing on behalf of the appellant contended that pursuant to the direction given by this Court Rs.1,50,000/has already been deposited in the trial Court by the appellant. In support of his contention learned Advocate appearing on behalf of the appellant has relied on the following decisions:

1. (2008) 7 SCC 137 (Sudhir Kumar Bhalla Vs. Jagdish Chand & Ors.)

2. (2006) 6 SCC 39 (M. S. Narayana Menon Alias Mani Vs. State of Kerala & Anr.).

3. Learned Advocate appearing on behalf of the opposite party no. 2 contended that the complainant duly proved the existing liability of the appellant at the time of issuance of the cheque and that the appellant has admitted that the cheque was issued by him during trial. It is submitted that there was absolutely no scope of sending the cheque for examination by the handwriting expert in view of such specific admission of the appellant and that learned trial Court duly considered the facts and circumstances of the case after evaluating the evidence on record and accordingly it cannot be said that the judgment of the learned Appellate Court is not in accordance with law.

4. Learned Advocate for the opposite party no.2 also distinguished the decisions referred to hereinabove on the point that the complainant has extensively proved the existing liability by producing the bills and other documents of the appellant and therefore learned trial Court as well as learned First Appellate Court were justified in rejecting such plea of the appellant and convicted the appellant.

5. The case of the prosecution in brief is that the appellant used to work as a contractor under the Public Works Department at Chinsurah and he used to purchase building materials from the complainant on credit. However, the appellant could not liquidate his entire dues and in due discharge of his liability he issued a cheque of Rs.1,50,000/in favour of the complainant but the said cheque was dishonoured.