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High Court of Judicature at Calcutta
ASHIM KUMAR ROY
Debobrata Podda
Versus
The State of West Bengal & Another
C.R.R. No. 1103 of 2005
Decided On : 23-06-2011
SECTION 138 - NEGOTIABLE INSTRUMENTS ACT, 1881 - DISHONOURED CHEQUE - JURISDICTION - TERRITORIAL JURISDICTION - OFFENCE - SERVICE OF NOTICE - POWER OF ATTORNEY - VALIDITY - EVIDENCE ACT, 1872 - SECTION 114 - GENERAL CLAUSES ACT, 1897 - SECTION 27 - PRESUMPTION UNDER SECTION 139 OF THE N.I. ACT - LEGALLY ENFORCEABLE DEBT - CAUSE OF ACTION - EXAMINATION UNDER SECTION 313 OF THE CODE OF CRIMINAL PROCEDURE, 1973 - SCOPE - COMPENSATION - AWARD - HEARING OF ACCUSED - MONGILAL VS. STATE OF MADHYA PRADESH, 2004 C CR LR (SC) 188 - RELIED.
Fact of the Case:
Petitioner, convicted under Section 138 of the Negotiable Instruments Act, 1881, for issuing a dishonoured cheque, challenged the conviction and sentence on various grounds, including lack of jurisdiction, improper service of notice, and the validity of the power of attorney used by the complainant.
Finding of the Court:
1. The court held that a power of attorney holder can initiate criminal proceedings under Section 138 of the N.I. Act on behalf of the payee, as per the Supreme Court's decision in M/s. Shankar Finance & Investments Vs. State of Andhra Pradesh & Ors. (AIR 2009 SC 422). 2. The court found that refusal to accept a notice amounts to good service and that the burden lies on the accused to prove otherwise. It relied on the presumption under Section 27 of the General Clauses Act and Section 114 of the Evidence Act. 3. The court held that the presumption under Section 139 of the N.I. Act that the cheque was received in discharge of a legally enforceable debt was not rebutted by the accused. 4. The court found that the accused did not make any payment even after receiving the summons from the court, and thus the cause of action arose. 5. The court upheld the conviction but reduced the sentence from six months to two months of simple imprisonment. 6. The court set aside the order of compensation as the accused was not heard on that point and remanded the case back to the trial court for deciding the quantum of compensation in accordance with the law.
Issues: 1. Whether a power of attorney holder can initiate criminal proceedings under Section 138 of the N.I. Act on behalf of the payee. 2. Whether refusal to accept a notice amounts to good service and the burden of proof lies on the accused to prove otherwise. 3. Whether the presumption under Section 139 of the N.I. Act that the cheque was received in discharge of a legally enforceable debt was rebutted by the accused. 4. Whether the cause of action arose even though the accused did not make any payment after receiving the summons from the court. 5. Whether the sentence of six months of simple imprisonment was appropriate.
Ratio Decidendi: 1. The court relied on the Supreme Court's decision in M/s. Shankar Finance & Investments Vs. State of Andhra Pradesh & Ors. to hold that a power of attorney holder can initiate criminal proceedings under Section 138 of the N.I. Act on behalf of the payee. 2. The court held that refusal to accept a notice amounts to good service and that the burden lies on the accused to prove otherwise, relying on Section 27 of the General Clauses Act and Section 114 of the Evidence Act. 3. The court held that the presumption under Section 139 of the N.I. Act that the cheque was received in discharge of a legally enforceable debt was not rebutted by the accused. 4. The court found that the accused did not make any payment even after receiving the summons from the court, and thus the cause of action arose. 5. The court reduced the sentence from six months to two months of simple imprisonment, considering the facts and circumstances of the case.
Final Decision: The conviction under Section 138 of the N.I. Act was upheld, but the sentence was reduced from six months to two months of simple imprisonment. The order of compensation was set aside, and the case was remanded back to the trial court for deciding the quantum of compensation in accordance with the law.
This criminal revision is directed against an order passed by the learned Metropolitan Magistrate, 11th Court, Calcutta convicting the petitioner under Section 138 of the Negotiable Instruments Act and sentencing him thereunder to suffer simple imprisonment for six months and to pay a sum of Rs.50,000/- as compensation to the opposite party no. 2 and then affirmed by the appellate Court.
2. The case against the petitioner in a nutshell is as follows;
“The petitioner from time to time during the period 1996/1997 obtained supply of different quantity of papers from the complainant on credit and on that count a sum of Rs.37,226/- became due and payable. The petitioner thereafter on discharge of the said liabilities issued a cheque drawn on Baranagar Co-operative Bank Limited, Cossipore Branch for Rs.28,369/- in favour of the complainant. The complainant having received the said cheque presented the same to the banker on which the same was drawn for its encashment through his banker. However, the said cheque was returned unpaid with the remarks “stop payment”. The complainant having received the intimation about the dishonour of cheque on the instruction of the petitioner to stop payment, issued a demand notice in terms of sub-section (b) of Section 138 of the N.I. Act. However, the said demand notice was returned to the complainant with the postal remarks “refused”. The opposite party after expiry of 15 days and within a period of 30 days made a complaint in Court. During the trial the complainant examined as many as three witnesses in support of its case but the defence examined none.
3. This criminal revision is arising out of an appellate order confirming the order of conviction and sentence passed against the petitioner by the Trial Court. It is well settled the scope of High Court in interfering with such an order in exercise of its revisional jurisdiction under Section 401 of the Code is very limited.
Now, before adverting to the rival submissions of the parties it would be appropriate to refer the observations of the Hon’ble Supreme Court in this regard.
In the case of State of Kerala Vs. Puttu Mana Illath Jathabedan Namoodiri, reported in 1999 SCC (Cri) 275, the Apex Court observed as follows;
“In its revisional jurisdiction, the High Court can call for and examine the record of any proceedings for the purpose of satisfying itself as to the correctness, legality or propriety of any finding, sentence or order.
In other words, the jurisdiction is one of supervisory jurisdiction exercised by the High Court for correcting miscarriage of justice. But the said revisional power cannot be equated with the power of an appellate court nor can it be treated even as a second appellate jurisdiction. Ordinarily, therefore, it would not be appropriate for the High Court to re-appreciate the evidence and come to its own conclusion on the same when the evidence has already been appreciated by the Magistrate as well as the Sessions Judge in appeal, unless any glairing feature is brought to the notice of the High Court which would otherwise tantamount to gross miscarriage of justice.”
Similarly, in the case of State of Maharashtra Vs. Jagdip Singh Kuldip Singh & Ors., reported in 2004 SCC (Cri) 203, the Hon’ble Apex Court further held as follows;
“Section 401 Cr.P.C. is a provision enabling the High Court to exercise all powers of an appellate court, if necessary, in aid of power superintendence or supervision as a part of power of revision conferred on the High Court or the Sessions Court. It is for that purpose, as set out in Section 397, if necessary the High Court or the Sessions Court can exercise all appellate powers. Section 401 Cr.P.C. conferred powers of an appellate court on the revisional court with the above limitations. The provisions contained in Section 395 to Section 401 Cr.P.C. read together do not indicate that the revisional power of the High Court can be exercised as a second appellate power. The High C
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