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IN THE HIGH COURT OF JUDICATURE AT CALCUTTA
MADHUMATI MITRA, J.
Damu Tudu and Ranjit Hembram – Appellant
Versus
Paschim Banga Gramin Bank and Another – Respondents
Criminal Revision No. 272 of 2019
Decided On : 09-04-2019
Negotiable Instruments Act - Cheque Issuance - Section 138
Fact of the Case:
The petitioners were convicted under Section 138 of the Negotiable Instruments Act for dishonoring a cheque issued in favor of a bank to discharge their debts. The petitioners argued that the cheque was not issued in discharge of any legally enforceable debt and liability as the claim of the bank had been barred by limitation prior to issuance of the cheque.
Finding of the Court:
The court found that the petitioners had acknowledged their outstanding dues and issued the cheque in question for Rs. 40,000 in favor of the bank, which was dishonored due to insufficient funds. The court held that the burden of proving that there was no existing liability is on the accused, and in this case, the petitioners failed to discharge that burden.
Issues: The main issue was whether the cheque was issued in discharge of a legally enforceable debt and liability, and whether the claim of the bank was time-barred prior to the issuance of the cheque.
Ratio Decidendi: The court applied Section 139 of the Negotiable Instruments Act, which presumes that a cheque has been issued for a debt or liability. It held that the burden of proof shifts to the accused to prove that the cheque was not issued in discharge of any debt or liability. The court also emphasized that in the absence of perversity, the High Court should not upset concurrent factual findings of trial court and appellate court.
Final Decision: The court dismissed the application and directed the petitioners to comply with the direction of the trial magistrate immediately.
JUDGMENT :
1. This is an application under Section 482 read with Section 401 of the Code of Criminal Procedure filed by the petitioners challenging the judgment dated 13.12.2018 passed by the Learned Sessions Judge, Birbhum, Suri, in connection with Criminal Appeal No. 9 of 2018. By the impugned judgment Learned Sessions Judge confirmed the judgment and order of conviction of the petitioners passed by the Learned Additional Chief Judicial Magistrate, Suri, Birbhum, in A.C. Case No. 123 of 2015 under Section 138 of the Negotiable Instruments Act 1881.
2. Present opposite party no. 1 Paschim Bangla Gramin Bank filed a complaint against the present petitioners for commission of alleged offence under Section 138 of the Negotiable Instruments Act. It was alleged in the said complaint that the present petitioners being the Doloneta and Sahodaloneta of Jahar Guru Joint Liability Group and being customer of Paschim Banga Gramin Bank took a group loan amounting to Rs. 1,15,000/- on and from 29.11.2010 repayable as per agreement. Subsequently they failed to repay the said loan in terms of loan agreement. Petitioners on demand of the Bank jointly issued and delivered a cheque of Rs. 40,000/- vide cheque no. 530621 dated 06.05.2015 drawn on Paschim Banga Gramin Bank, Md. Bazar Branch in favour of the complainant Bank in discharge of their debts and liabilities. The said cheque was presented for encashment on the same date but was dishonoured due to insufficient of fund. Opposite party/complainant served legal notice demanding the amount of Rs. 40,000/- within 15 days from the date of receipt of the said notice. Petitioners did not pay the said amount in spite of the receipt of demand notice. Opposite party Bank filed complaint against the petitioners. Learned Magistrate was pleased to issue process against the petitioners to face trial for commission of alleged offence punishable under Section 138 of the Negotiable Instruments Act.
3. After conclusion of trial, the Learned Additional Chief Judicial Magistrate, Suri, Birbhum by her judgment and order dated 15.03.2018 was pleased to convict the petitioners for committing an offence under Section 138 of the Negotiable Instruments Act and sentenced them to suffer simple imprisonment till raising of the Court and to pay a compensation of Rs. 42,000/- jointly on or before 25.06.2018 and in default simple imprisonment for thirty days each.
4. Being aggrieved, the petitioners preferred criminal appeal being no. 9 of 2018 before the Learned Sessions Judge, Birbhum and Learned Sessions Judge on 13.12.2018, dismissed the said appeal and affirmed the judgment and order of conviction passed by Learned Additional Chief Judicial Magistrate, Suri, Birbhum.
5. The impugned judgment of the Learned Sessions Judge affirming the judgment of conviction and sentence of the petitioners has been assailed by the Learned Advocate of the petitioners mainly on two grounds. He has strongly contended that the learned Trial Magistrate and Learned Sessions Judge failed to consider that the cheque in question was issued not in discharge of any legally enforceable debt and liability as the claim of the Bank had been barred by limitation prior to issuance of the cheque. It is his specific contention that the petitioners never took the loan in their personal capacity. It has been contended that they took the loan for the group and as such they cannot be personally held responsible for the dues of the bank.
6. Learned Advocate for the petitioners has forcefully contended that the petitioners took the loan from the complainant Bank not in their personal capacity, but on behalf of the Jahar Guru Joint Liability Group and they were the Daloneta and Sahodaloneta of the said group and the loan agreement mentioned that the said loan was granted in favour of Jahar Guru Joint Liability Group. Learned Advocate for the petitioners has further submitted that the demand notice as well as the cause title of the complaint did not mention anythin
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