THE DRAWER OF A CHEQUE CANNOT BE HELD LIABLE TO PAY THE CHEQUE AMOUNT WHEN THERE IS MISMATCH BETWEEN THE ARTICLES OR GOODS FOR WHICH THE CHEQUE WAS ISSUED AND THE GOODS OR ARTICLES ACTUALLY SUPPLIED.

JUDGMENT

1. This criminal appeal challenges the judgment and order dated 11th December, 2017 passed by learned 12th Court of Metropolitan Magistrate in case no. C-21081 of 2011 (T.R. No. 1341 of 2011) recording an order of acquittal against accused person.

2. Briefly stated, Sri Subrata Nag, Senior Manager-Commercial and Legal as well as authorized representative of Chloride Power Systems and Solutions Limited (formerly known as Caldyne Automatics Limited) represented through its employee filed a petition under Section 138 of the N.I. Act, 1881, against Dharmendra Singh, Proprietor of Venus International contending, inter alia, that the accused approached the complainant for procuring renewal energy devices and spare parts (e.g. Solar Battery, solar Module etc.) for his requirement and had placed purchase order dated 5th May, 2011 for Rs. 9,86,136/- and CAL/02/2011-12 dated 9th June, 2011 for Rs. 14,13,422/- respectively. The complainant company duly supplied the required materials in terms of the purchase orders and raised two invoices bearing no. C/00082/2011-12 dated 24th May, 2011 for Rs. 9,86,135/- and C/00124/2011-12 dated 13th June, 2011 for Rs. 14,13,678/- and the same were duly received by the accused without raising any dispute whatsoever regarding quality and quantity of the materials supplied. Thus, the accused incurred the liability to pay a sum of Rs. 24,47,809/- including a sum of Rs. 47,996/- towards Central Sales Tax. The accused person on 6th May, 2011 paid a sum of Rs. 9,66,500/- through Real Time Gross Settlement (RTGS) and on 6th June, paid a sum of Rs. 10,00,000/- in the same fashion. In discharge of his liability to pay rest of the amount a cheque was issued by the accused person bearing no. 788307 dated 14th June, 2011 for a sum of Rs. 4,81,309/- drawn on the IDBI Bank Limited, Siddha Point, Park Street, Kolkata-700016. The cheque was presented by the complainant company on 14th June, 2011 and the same was returne unpaid on 22nd June, 2011 with an endorsement on the cheque return memo “Payment stopped by drawer”. By letter bearing no. L-3:VENUS:COMSN: 11-12:0411 dated 7th July, 2011 the drawee duly intimated the drawer about the dishonour of cheque by the bank with a demand for payment of a sum of Rs. 4,81,309/- within a period of 15 days from the date of receipt. The said letter was received by the accused person on 9th July, 2011 and a reply to that letter was given by the accused person 19th July, 2011.

3. Chloride Power Systems and Solutions Limited filed a petition of complaint under Section 138 of N.I. Act before the jurisdictional Magistrate. Learned Trial Court was pleased to issue process upon the accused person who surrendered to the jurisdiction of learned Trial Court and stood trail of the case. To crown success Subrata Nag, the authorized representative of the complainant company adduced evidence as P.W. 1. The accused person adduced evidence as D.W. 1 and learned Trial Court after considering the evidence on record, both oral and documentary was pleased to pass the judgement and order impugned. According to learned Trial Court there was shortage of supply of materials by the complainant company. Therefore, the accused person successfully rebutted the presumption of law as laid down under Section 139 of the Evidence Act.

4. Assailing the impugned judgement Mr. Nigam Ashish Chakraborty, learned Counsel for the appellant submits that instruction to the banker by the accused person to stop payment itself is sufficient to hold the accused person culpable for committing offence within the meaning of Section 138 of the N.I. Act. The accused person did not deny the fact that the cheque was issued by the accused person in discharge of his liability. The plea taken by the accused person is nothing but a ploy to deny the obligation to pay the bill amount. It is further contended that even if the issue is considered in the light of Section 56 of the N.I. Act then also the accused-respondent cannot escape