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BIBHAS RANJAN DE
Aloke Kumar Das – Appellant
Versus
Sudarshan Paper & Board Private Ltd – Respondent
JUDGMENT
Bibhas Ranjan De, J. - I am dealing with an application under Section 482 of the Code of Criminal procedure (for shot 'Cr.P.C') for quashing of the proceeding being no. CS 495 of 2020 under Section 138 of the Negotiable Instrument act, 1881(for short 'N.I. act') pending before the Ld. 3rd Metropolitan Magistrate, Calcutta.
2. Petitioner assailed the proceeding stating inter alia that there was commercial transaction between the parties and there was pending unpaid bills from the petitioner to the opposite party for supply of paper to the petitioner for manufacturing paper diary. It is alleged that petitioner issued post dated cheques against the goods received but payments were made by cash and this was the practice. It is further alleged that opposite party /complainant had no authority to present the cheques including blank dated cheques to his banker without informing the petitioner and therefore petitioner had no obligation to make arrangement for payment. However, the case of the petitioner that every time payment was made by case though cheques were issued in favour of the complainant by way of security. So, cheques in connection of this case were issued against surety
The presumption under Section 139 of the N.I. Act is mandatory, and the burden is on the accused to rebut the presumption with convincing evidence.
The issuance of a cheque raises a statutory presumption of liability under the N.I. Act that can only be rebutted through evidence in a trial.
A legally enforceable debt must exist at the time of cheque presentation for liability under Section 138 of the N.I. Act to arise.
The court emphasized that the determination of whether cheques were issued for a legally enforceable debt or as security is a matter for trial, not for quashing proceedings.
The main legal point established in the judgment is that the defence of a cheque being issued for security and not for discharge of debt or liability would be a triable issue and not a ground for qua....
Point of law: Question whether a post-dated cheque is for “discharge of debt or liability” depends on the nature of the transaction.
The court emphasized that the determination of whether a cheque was issued for a legally enforceable debt or as security is a factual issue for trial.
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