The judgment emphasizes the importance of the examination of the accused under Section 313 for natural justice and upholds the presumption of existing liability under the Negotiable Instruments Act.

DEBI PROSAD DEY, J.

1. Challenge under this application under Section 482 of the Code of Criminal Procedure is the judgment and order dated 13th January 2012 passed by the learned Sessions Judge, Paschim Medinipur in Criminal Appeal No. 15 of 2011 whereby and whereunder the learned Sessions Judge has affirmed the judgment and order of sentence dated 15th June 2011 passed by the learned Judicial Magistrate, IV Court, Paschim Medinipur, in CR Case No. 142 of 2007 under Section 138 of the Negotiable Instruments Act, 1881 and sentenced them to suffer simple imprisonment for two years and pay a fine of Rs. 12 lac and thereafter directed that said fine amount if realized be paid to the complainant/opposite party No. 1. Learned Sessions Judge further modified the sentence by affirming the judgment to the effect that Rs. 11 lac ought to be paid towards fine by the petitioners and remaining 1 lac to be credited to the exchequer of the Government of West Bengal.

2. Learned Advocate for the petitioner Mr. Bhattacharya contended that the petitioners have not been properly examined by the learned trial Court under Section 313 of the Code of Criminal Procedure and thereby the petitioners have been seriously “prejudiced” and they did not even answer the allegations levelled against them properly in the trial Court. The incriminating materials and evidence produced and adduced against the petitioners were not put to the petitioners at the time of their examination under Section 313 of the Code of Criminal Procedure and thereby the petitioners were prevented from explaining the circumstances in respect of such incriminating materials resulting in serious miscarriage of justice.

3. Mr. Bhattacharya further contended that the company has not been arrayed as an accused and in absence of the company the petitioners cannot be convicted for the offence punishable under Section 138 of the Negotiable Instruments Act. It is further submitted that the complainant had no financial capacity to advance any loan amount to the petitioners and complainant has failed to prove his financial capacity in providing such loan to the petitioners. Therefore, the complainant has failed to prove the existing liability of the petitioners in issuance of alleged cheque in favour of the complainant. It is submitted that the cheque was handed over to the complainant as a collateral security but the complainant has misused the same by filing the application under Section 138 of the Negotiable Instruments Act. In support of his contention learned Advocate for the petitioner has relied on following decisions reported in:

(i) 1971 SCC (Cri) 97. State of Madras v. G.V Parekh

(ii) (2014) 1 C. Cr. L.R (SC) 518 John K. Abraham v. Simon C. Abraham

4. Learned Advocate for the opposite party No. 1 contended that there was absolutely no need of proving the financial capacity of the complainant since on the strength of Section 118 of the 139 of the Negotiable Instruments Act it is incumbent upon the Court concerned to presume the existing liability of the petitioners. Moreover, the petitioners also could not prove anything in the trial Court that such cheques were issued as a collateral security. It is further submitted that the burden of proof that the cheque had not been issued for any debt or liability is on the petitioners and they have failed to discharge their burden of proof resulting in drawing of presumption as stipulated under Sections 118 and 139 of the Negotiable Instruments Act against the petitioners.

5. It is true that all the incriminating materials are required to be put in during the examination of the petitioners so that an opportunity of explaining such incriminating circumstances may be given to the accused in a criminal trial. The purpose of incorporating section 313 of the Code of Criminal procedure is primarily based on the principle of natural justice. Therefore, the impact and the importance of the examination of the accused under Section 313 of the Code of