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2022 Supreme(Cal) 379
IN THE HIGH COURT OF CALCUTTA
Shampa Dutt Paul, J.
Sonodyne T.v. Company Ltd. - Appellant
Versus
Mr. Rajesh G. Kalra - Respondent
CRA 121 of 2007
Decided On : 02-09-2022
Md. Kutubuddin, for the Appellant; Ms. Rita Datta, for the Respondent
The central legal point established in the judgment is the requirement to prove a legally enforceable debt or liability for an offence under Section 138 of the N.I. Act.
Headnote:
N.I. Act - Cheque Dishonour - Section 138 - 138 N.I. Act
Fact of the Case:
The appellant appealed against the acquittal of the respondent for an offence under Section 138 of the N.I. Act. The appellant claimed that the cheque issued by the respondent was dishonoured, and the respondent failed to repay the amount despite receiving a demand notice.
Finding of the Court:
The court found that the appellant failed to prove that the cheque was issued to pay off a legally enforceable debt or liability. The court considered evidence of business transactions and bank records, concluding that there was no business transaction between the parties from 1990 to 2004. The court held that the cheque was kept as security and misused by the appellant after 15 years.
Issues: The issues revolved around the validity of the cheque, existence of a legally enforceable debt, and misuse of the cheque by the appellant.
Ratio Decidendi: The court's decision was based on the lack of evidence showing a business transaction between the parties from 1990 to 2004, and the 15-year gap between the disputed cheque and the last cheque issued.
Final Decision: The appeal was dismissed, affirming the judgment and order of acquittal for the respondent.
JUDGMENT
Shampa Dutt (Paul), J. - This appeal is directed against judgment and order dated 27.12.2006 passed by the learned Addition Chief Judicial Magistrate, Alipore, 24-Parganas (South) in T.R. 264 of 2004 arising out of C-3774/2004 acquitting the respondent/accused for offence punishable under Section 138 N.I. Act.
2. The appeal has been preferred for setting aside the order and judgment of acquittal on the ground that the said judgment under appeal is bad in law and that the same has not been passed by properly considering the evidence- on-record. The learned Magistrate failed to appreciate the evidence-on-record both oral and documentary, came to erroneous findings and held that the cheque was not issued to pay off legally enforceable debt or any liability and as such, the judgment is liable to be set aside. By the said judgment the learned Magistrate has caused serious miscarriage of justice by not holding the respondent/accused person guilty of the offence punishable under Section 138 of the N.I. Act inspite of the complainant proving the case against the accused/respondent.
3. The complainant's case before the Trial Court was that the complainant has been authorized to file this case on behalf of the complainant company, M/s. Sonodyne T.V. Company Ltd., as per Board of Directors resolution dated 09.08.2004. That the accused in discharge of his existing enforceable liability issued and A/c Payee cheques in favour of the complainant bearing no. 087110 dated 21.07.2004 drawn on United Bank of India, Barakar Branch, Burdwan.
4. The said cheque was signed by the accused being the proprietor of M/s Gopal Radio Mart. That the complainant presented the said cheque for encashment with the banker, Standard Chartered Bank, Barakar Branch, Burdwan within its validity period but the said cheque was dishonoured and returned back along with a memorandum dated 27.07.2004 with the remark 'No such A/c with us'. That a demand notice dated 09.08.2004 and the same was sent under registered post with A/D on 10.08.2004. That the accused received the said demand notice and despite receipt of the demand notice did not repay the amount, and hence, this case was filed.
5. Cognizance was taken, process was issued. The accused was examined under Section 251 of the Code of Criminal Procedure. He pleaded not guilty and claimed for trial.
6. Defence case The case of the defence is that a false case has been filed by the complainant only to harass him. It is categorically stated by the accused before the Trial Court that his business was closed in the year 1990 and the bank account connected to the said business was closed much earlier (1990). The disputed cheque in this case was kept as security and the complainant taking advantage of that cheque filed the complaint against the accused person after 15 years of closure of the said account. The learned Magistrate considering the materials-on-record was pleased to find that the complainant did not produce any cogent evidence to show as to when the disputed cheque was issued to payoff legally enforceable debt or any other liability and accordingly rightly held that the accused/respondent could not be held liable to have committed the offence punishable under Section 138 of N.I. Act and accordingly acquited the accused of the said charge.
7. Evidence on record The appellant/complainant as Prosecution witness no. 1 (PW-1) has deposed before the Court on oath, that they had business transaction with the respondent/accused. He has stated that they deposited the cheque with their bank on 21.07.2004. On 27.04.2004, it was returned with the comment 'No such A/c is lying with us'. The information was received by them on 02.08.2004. On 10.08.2004, a demand notice was sent which was received by the accused/respondent on 13.08.2004 but the respondent did not make the payment within the statutory period.
8. The respondent/accused examined himself as Defence witness no. 1 (DW-1). This witness on oath has stated that his sho
