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2016 Supreme(Cal) 560
IN THE HIGH COURT AT CALCUTTA
Indrajit Chatterjee, J.
Sujit Kumar Pal - Appellant
Vs.
State of West Bengal & Anr. - Respondents
C.R.A. 625 of 2007
Decided On : 23-11-2016
For the Appellant : Mr. Somopriyo Chowdhury Mr. Sourav Bhagat
For the Opposite Party : Mr. Sabyasachi Banerjee Mr. Anirban Dutta
The presumption of validity under Sections 118 and 139 of the Negotiable Instruments Act is rebuttable, but the burden of proof lies on the accused to establish that the cheque was not issued in discharge of any liability.
Headnote:
NEGOTIABLE INSTRUMENTS ACT - Dishonour of Cheque - Sections 118, 138, 139 - Presumption of validity of cheque - Rebuttal - Burden of proof.
Fact of the Case:
The complainant, a Section Engineer, entered into an agreement to purchase land from the accused, his junior. The accused issued a cheque for Rs. 1,30,000/- as an advance for the land, but the cheque was dishonored due to insufficient funds. The complainant filed a complaint under Section 138 of the Negotiable Instruments Act, 1881. The trial court convicted the accused, but the appellate court reversed the conviction, holding that the complainant had filled in the body of the cheque, including the name of the payee and the amount.
Finding of the Court:
The High Court allowed the appeal filed by the complainant and restored the trial court's conviction. The court held that the presumption of validity under Sections 118 and 139 of the Negotiable Instruments Act was not rebutted by the accused. The court also held that the comparison of the handwriting on the body of the cheque with the signature of the complainant was a violation of the judgment in Nita Kanoi @ Bansal (supra), which held that there was no need for verification of the handwriting by which the name of the payee and the amount had been filled up.
Issues: 1. Whether the presumption of validity under Sections 118 and 139 of the Negotiable Instruments Act was rebutted by the accused. 2. Whether the comparison of the handwriting on the body of the cheque with the signature of the complainant was a violation of the judgment in Nita Kanoi @ Bansal (supra).
Ratio Decidendi: 1. The presumption of validity under Sections 118 and 139 of the Negotiable Instruments Act is rebuttable, but the accused failed to discharge the burden of proof. 2. The comparison of the handwriting on the body of the cheque with the signature of the complainant was a violation of the judgment in Nita Kanoi @ Bansal (supra), which held that there was no need for verification of the handwriting by which the name of the payee and the amount had been filled up.
Final Decision: The High Court allowed the appeal filed by the complainant and restored the trial court's conviction. The accused was sentenced to rigorous imprisonment for three months and a fine of Rs. 2,60,000/-.
Indrajit Chatterjee, J.
1. This Court is hearing this appeal as against the judgement and order dated 28-08-2007 passed by the learned Additional Sessions Judge, Barrackpore, North 24-Parganas, in Criminal Appeal No. 2 of 2007 vide which the order of conviction as passed by the learned Judicial Magistrate, 5th Court, Barrackpore, North 24-Parganas, on 26.04.2007 as passed in Complaint Case No.583 of 2003 was reversed from an order of conviction to an order of acquittal.
2. It may be mentioned that the learned Trial court vide the impugned judgment convicted the present accused/respondent in respect of the charge punishable under Section 138 of the Negotiable Instruments Act, 1881 (hereinafter called as the Act of 1881) and sentenced him to suffer rigorous imprisonment for one year and directed to pay fine of Rs.2,60,000/- (rupees two lakhs sixty thousand) which will go to the complainant and in default the said convict was directed to undergo further R.I for one year.
3. The fact relevant for the purpose of adjudication of this appeal can be stated in brief thus:
That the complainant was a Section Engineer at Kanchrapara Railway Workshop and the accused was his junior. During their days of service, the present opposite party/accused expressed his desire to sell out his premises and the complainant/appellant intended to purchase the same. There was an agreement for sale dated 30th Chaitra, 1409 B.S. and the price for the said land was fixed Rs.4,00,000/- and the complainant paid an advance of Rs.1,00,000/-towards the earnest money and the balance was scheduled to be paid within six months at the time of registration. After the execution of the said agreement, the accused failed to hand over his title deeds despite request by the complainant. Thus, the agreement to sale failed and the complainant demanded that the accused should pay him back the earnest money along with interest and damages thereof. In view of such request, the accused on 22-07-2003 gave the complainant one cheque (Ext.2) covering an amount of Rs.1,30,000/- bearing No. 142721 dated 22-07-2003 drawn on UCO Bank, Kanchrapara Branch, with a request to place the cheque for encashment on or after 01-09-2003. The cheque was deposited by the complainant/appellant to his banker, i.e. State of India, Kanchrapara Brach on 01-09-2003 this after four and half month of payment of the advance. The said cheque was dishonoured with the remarks ‘insufficient founds’ and as such, one legal notice was issued under the provisions of the Act of 1881, which was duly accepted by the opposite party/accused and he was replied the same which was marked as Exbt. 5 before the learned trial court wherein his Advocate informed this appellant/ complainant that no such cheque was issued at all and as such, the accused/opposite party asked the complainant/appellant not to proceed with this matter.
4. However, the complainant filed one complaint before the learned Sub-Divisional Judicial Magistrate, Barrackpore, which was registered as Complaint Case No.583 of 2003 and later on, the case was transferred to the court of Judicial Magistrate, 5th Court, Barrackpore and when the accused examined himself as DW-1 he deposed that the instructed the bank to make stop payment from his account even though he built up a story as witness that the said cheque book was lost and he lodged one G.D. Entry before the Naihati G.R.P.S, being G.D. Entry No.988 dated 25-07-2003, and the said G.D. Entry was produced by the D.W.-2 which was marked as Exbt.-A. In 313 Cr.P.C., the accused/opposite party stood to his claim that no such cheque was issued to the complainant. When the complainant (PW-1) was being examined it was suggested by the defence that the cheque leaf in question was taken by the complainant under influence of liquor and it was also suggested that the execution of the agreement Exhibit-1 was under influence of liquor and the parties used to consume liquor together.
5. It may also be noted that on b
