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IN THE HIGH COURT OF CALCUTTA
INDRAJIT CHATTERJEE, J.
Sanjib Kumar Ghosh - Appellant
Versus
Dolon Adhikari and others - Respondent
C.R.A. 726 of 2013
Decided On : 10-09-2015
NEGOTIABLE INSTRUMENTS ACT, 1881 - Sections 138, 139 - Dishonour of Cheques - Issuance of Notices - Proof of Service - Admissibility of Photocopies of Notices - Comparison of Signatures on A/D Cards - Presumption under Section 139 - Compensation under Section 357(3) of Cr.P.C.
Fact of the Case:
The appellant filed three separate complaints under Section 138 of the Negotiable Instruments Act, 1881 against the respondent for dishonor of three cheques totaling Rs. 1,40,500/-. The trial court acquitted the respondent on the ground that the notices under Section 138B were not served as the A/D cards did not bear any postal stamp and no receipt from the postal department was filed.
Finding of the Court:
The court held that the photocopies of the notices, though not admissible in evidence unless admitted, could be relied upon in the instant case as the originals were in the possession of the respondent and he denied their receipt. The court compared the signatures on the A/D cards with the admitted signatures of the respondent and found that they were the same, indicating that the respondent had received the notices.
Issues: 1. Whether the notices under Section 138B of the Negotiable Instruments Act were duly served on the respondent? 2. Whether the presumption under Section 139 of the Negotiable Instruments Act applies in this case?
Ratio Decidendi: 1. The court relied on the Apex Court decisions in Devender Kumar Singla v. Baldev Krishan Singla, Indo Automobiles v. Jai Durga Enterprises, and K. Bhaskaran v. Sankaran Vaidhyan Balan to hold that a statement made under Section 313 Cr.P.C. is not evidence but only the accused's version of events, and that the absence of any suggestion during cross-examination cannot be made up by a statement under Section 313 Cr.P.C. 2. The court also relied on the decision in V. Raja Kumari v. P. Subbarama Naidu to hold that a statutory notice under Section 138 of the Negotiable Instruments Act sent to the correct address of the drawer but returning with an endorsement must be presumed to have been served on the drawer. 3. The court held that the presumption under Section 139 of the Negotiable Instruments Act applies in this case, as the holder of a cheque is backed by the presumption that the cheque was issued for consideration and that the drawer had sufficient funds in his account to cover the amount of the cheque.
Final Decision: The court reversed the judgment of acquittal passed by the trial court and convicted the respondent under Section 138 of the Negotiable Instruments Act. The respondent was sentenced to undergo rigorous imprisonment for ten days and to pay compensation of Rs. 1,81,000/- to the appellant under Section 357(3) of the Cr.P.C.
Indrajit Chatterjee, J.
1. I am hearing this appeal as against the judgment and order of acquittal dated 28.06.2013 as passed by the Judicial Magistrate 4th Court-cum-Judicial Magistrate, Sealdah, South 24 Paraganas in complaint case No. 86 of 2011 wherein he was pleased to acquit the present respondent No. 1 hereinafter called as the private respondent. I may be noted that as per order dated 12.07.2011 has passed in complain case No. 86 of 2011 it was ordered by the learned Trial Court that in that case that is complaint case No. 86 of 2011 he will also decide complaint case Nos. 84 of 11 and 85 of 2011. It may be noted for further reference that cheque number, date and amount involved in this cases may be mentioned below:
"1. In complaint case No. 86 of 2011 cheque No. 316566 dated 20.07.2011 for Rs. 25,000/-.
2. In complaint case No. 85 of 2011 cheque No. 168624 dated 11.10.2010 for Rs. 1,00,000/-.
3. In complaint case No. 84 of 2011 cheque No. 199167 dated 11.10.2010 for Rs. 15,500/-."
2. Thus, the total amount involved was Rs. 1,40,500/-. Three separate cases were filed as I have already told regarding the dishonoured all those three cheques. The common case of the complaint before the trial court was that those three cheques as mentioned above were issued by the private respondent on the dates mentioned above for the amount also mentioned above in discharge of existing liability. Those cheques were marked as Exbt. 1B, 1A and 1 respectively. Those cheques were presented by the present appellant to his banker. But, unfortunately, all the three cheques bounced with the remark either "insufficient fund" or "payment stop" by the drawer. Thereafter, notices were issued under Section 138B of the N.I. Act to the accused in respect of the three cheques but, unfortunately, original notices could not be produced before the learned trial court and only photo copies were produced and as such those were marked as X, X/1 and X/2 for identification. The returning memos were, however, marked Exbt. 2 series. A.D. cards were also placed before the learned trial court but there was no postal stamp on any of the A.D. cards. Those three cards were marked Exbt. 3 series. It is clear from the photo copies of the notices that those were posted to Dolan Adhikari, Beliaghata, Kolk-10, by speed post respectively vide postal receipt No. EW502206978IN, EW502207001IN and EW502206995 of such letters were posted from Kolkata G.P.O. on 26.11.2010. It may be noted that no original receipt was produced before the trial court issued by the postal department regarding the posting of such notices.
3. Learned Trial Court held that the appellant was not a professional money lender that the cheques were issued in discharge of existing liability and that all the cheques were dishonoured. The learned trial court acquit the accused on the ground of that there was no endorsement on the postal department on the A.D. cards.
4. It was argued by Mr. Mitra, learned Advocate, appearing on behalf of the appellant that in this case, the court should not rely to much on question No. 5 of the examination of the accused under Section 313 of the Code of Criminal Procedure wherein the accused candidly denied the receipt of notice as contemplated under Section 138-B of the Negotiable Instruments Act. On that point, he referred to a decision of the Apex Court as reported in Devender Kumar Singla Vs. Baldev Krishan Singla, (2005) 9 SCC 15, the Apex Court "Mere because the accused stated that he had not received the shares or that the transaction took place on 27-7-1992 in his examination under Section 313 Cr.P.C. that is really of no consequence. The statement under Section 313 is not evidence (emphasis supplied by me). It is only the accused's stand version by way of explanation, when incriminating materials appearing against him are brought to his notice".
5. Mr. Mitra further submits by taking me to another decision of the Apex Court as reported in Indo Automobiles Vs. Jai Dur
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