Judicial Analysis Court Copy Headnote Facts Arguments Court observation

2022 Supreme(Cal) 1234

IN THE HIGH COURT AT CALCUTTA
Tirthankar Ghosh, J.
Subrata Bose - Appellant
Versus
Mithu Ghosh - Respondent
CRA 685 of 2018
Decided On : 07-11-2022

Advocates appeared:
Mr. Niladri Sekhar Ghosh, Ms. Srimoyee Mukherjee, Ms. Sampurna Chatterjee, Mr. Sourav Mondal., for the Appellant; Ms. Faria Hossain, Ms. Mamata Jana., for the State; Mr. Debasis Kar, Mr. Arka Tilak Bhadra, for the Respondent.

The main legal point established in this judgment is that under Section 139 of the Negotiable Instruments Act, there is a presumption that a cheque is issued for the discharge of a debt or liability. The burden is on the accused to prove otherwise, and they must raise a probable defense and provide evidence to rebut the presumption.

Headnote:Negotiable Instruments Act - Section 138 - The court discussed the provisions of Section 138 of the Negotiable Instruments Act, which deals with the offence of dishonoring a cheque. The court noted that under Section 139 of the Act, there is a presumption that the holder of a cheque received it for the discharge of a debt or liability, unless the contrary is proved. The court also referred to precedents such as Hiten P Dalal v. Bratindranath Banerjee and Maruti Udyug Ltd. v. Narendra, where the Supreme Court held that the court must draw a presumption in favor of the holder of the cheque unless the accused is able to prove otherwise. The court emphasized that the accused has the burden to prove that the cheque was not issued in discharge of a legally enforceable debt or liability.
Fact of the Case:
The complainant filed a complaint against the accused under Section 138 of the Negotiable Instruments Act, alleging that the accused issued a cheque that was dishonored due to insufficient funds. The complainant claimed that the accused owed him a debt and the cheque was issued in discharge of that debt.
Finding of the Court:
The trial court convicted the accused based on the documentary evidence and the presumption under Section 139 of the Act. However, the appellate court acquitted the accused, finding that the complainant failed to prove that the cheque was issued in discharge of a debt or liability. The appellate court also noted discrepancies in the evidence and the absence of supporting documents.
Ratio Decidendi:
The court held that under Section 139 of the Negotiable Instruments Act, there is a presumption that a cheque is issued for the discharge of a debt or liability. The burden is on the accused to prove otherwise. The court emphasized that the accused must raise a probable defense and provide evidence to rebut the presumption. Final Decision: The court set aside the acquittal by the appellate court and confirmed the conviction and sentence passed by the trial court. The accused was directed to comply with the order or face execution of the sentence.

JUDGMENT

Tirthankar Ghosh, J. - The present appeal has been preferred against the judgment and order of acquittal dated 05.09.2018 passed by the learned Additional Sessions Judge, FTC-3rd Court, Barrackpore in connection with Criminal Appeal No. 6/2017 wherein the Appellate Court reversed the order of conviction and sentence passed by the learned Judicial Magistrate 5th Court, Barrackpore in C-Case no. 466/2009 (TR Case no. 324/09) under Section 138 of the Negotiable Instruments Act.

2. The complainant/appellant filed a complaint before the learned ACJM, Barrackpore alleging commission of offence punishable under Section 138 of the Negotiable Instruments Act (hereinafter referred to as 'N.I. Act') against the accused/respondent namely Mithu Ghosh. The allegations made in the petition of complaint were to the effect that the complainant and the accused had business relationship and as such they were known to each other. The accused was chairperson of M/s. Sun Creative Images Pvt. Ltd. and on or about 25.06.07 the complainant entered into an agreement for telecasting a serial 'Ghatak' in Sun TV Bangla. It was agreed by and between the parties that there were number of episodes and each episode was of 23% minutes. For the said purpose as security deposit a sum of Rs.3,00,000/- was tendered. A further sum was demanded by the accused in order to incorporate the TV channel namely Sun TV Bangla, which the complainant collected from his friends and gave him with a hope that his serial 'Ghatak' would be telecast. It has been alleged that from 26.06.2008 to 12.12.2008 on different dates the complainant paid by cash a sum of Rs.9,70,000/-. In discharge of such debt and legal liability the accused issued an account payee cheque in favour of the complainant for a sum of Rs.9,70,000/- bearing Cheque No. 767432 dated 12.12.08 drawn on Punjab National Bank, G.T. Road Branch, Burdwan. The said cheque was presented several times i.e. on 12.12.08, on 01.01.09, on 27.04.09 and on 14.05.09 and on each occasion the same was dishonoured with the endorsement 'fund insufficient'. Lastly the cheque was presented with the complainant's banker i.e. United Bank of India, Titagarh Branch on 08.06.09 which was dishonoured vide return memo dated 09.06.09 issued by Punjab National Bank, 18, N.S. Road, Kolkata-1, Branch with the endorsement 'fund insufficient' and the bank return memo along with the dishonoured cheque was received by the complainant on 09.06.09. The complainant sent notice of demand by registered post with A/D dated 23.06.09 through his learned Advocate demanding the amount of Rs.9,70,000/- within 15 days from the date of receipt of the notice. The said notice/letter was sent on23.06.09 vide postal receipt no. 2981 dated 23.06.09 which was returned with postal remarks 'absence' or 'refused' on 02.07.09 and was received by the learned Advocate for the complainant on 14.07.09. The complainant alleges that the accused refused to accept the notice and neglected to pay the amount covered by the dishonoured cheque and as such made herself liable for commission of offence punishable under Section 138 of the Negotiable Instruments Act.

3. On such complaint being filed before the learned ACJM, Barrackpore, cognizance of the offence was taken and the case was transferred to the Court of the learned Judicial Magistrate, 5th Court, Barrackpore for trial and disposal. Process was issued after considering the initial evidence under Section 200 of Code of Criminal Procedure and under Section 145 of the N.I. Act. The accused appeared before the Court and he was thereafter examined under Section 251 of the Code of Criminal Procedure and the substance of the acquisition was read over to her to which she pleaded not guilty and claimed to be tried.

4. Records of the case reflect that the sole witness examined in this case is the complainant himself as PW1. The defence did not tender any witness. Number of documents were relied upon by the prosecution which included E