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IN THE HIGH COURT AT CALCUTTA
SHAMPA DUTT (PAUL), J.
Kamal Moni Dutta – Petitioner
Versus
Narayan Chandra Roy and Another – Respondents
CRR No. 150 of 2020
Decided On : 04-01-2023
Negotiable Instruments Act, 1881 - Section 138, (b), 139, 20, 87, 118 - Cheque was dishonoured - Insufficient Fund - Complainant filed revision praying for setting aside of judgment passed - Held, Respondent No. 1/complainant completely failed to discharge his initial burden of proof is totally erroneous and bad in law - Session Judge totally overlooked fact that Sec 139 N.I Act clearly includes a presumption that there exists a legally enforceable debt or liability - Presumption is rebuttable by accused - There is no such requirement of complainant to discharge his initial burden of proof as held by Session Judge - Question of "failing to discharge his initial burden of proof" by complainant as held by session is erroneous and bad in law and judgment under revision is thus liable to be set aside - Case is of year 2017 - Five years have passed - Accordingly amount of fine is modified - Revisional application disposed of.
JUDGMENT :
SHAMPA DUTT (PAUL), J.
1. The petitioner/complainant has filed revision praying for setting aside of the judgment dated 07/08/2019 passed by the Additional District & session Judge 1st Fast Track Court, Calcutta in Criminal Revision no. 61/2018 thereby setting aside the judgment and order passed by the Ld. Metropolitan Magistrate 3rd Court, at Calcutta dated 31.07.2017 in complaint case no. C-39853/2009 u/s 138 of The Negotiable Instruments Act, 1881, convicting the opposite party No. 1/ accused to suffer Imprisonment till the rising of the count and to pay compensation of Rs 5,20,000 to the complainant within 3 months id to suffer simple Imprisonment for 6 months.
2. The petitioner/complainants case is that the Opposite party no. 1 in discharge of this legal liabilities towards the petitioner issued one account payee cheque being cheque no. 366919 dated 14.12.2008 drawn on Allahabad Bank, Sodepur branch, District North 24 Parganas for a sum of Rs.2,60,000/-(Two Lakhs Sixty Thousand Only) on promise that the same would be honoured on its presentation for payment.
3. The petitioner presented the aforesaid cheque for payment with his banker Indusind Bank Ltd. 3A, Upper Wood Street, Kolkata-700017 on 08.06.2009 i.e. within the validity period of its presentation.
4. The aforesaid cheque was dishonoured with the remarks “Insufficient Fund” and as such the said cheque was returned to your petitioner with Banker’s Return Memo dated 09.06.2009 which was received by the petitioner on 09.06.2009.
5. The petitioner through his advocate Mr. Jamini Ranjan Ghosh sent a notice of demand dated 12.06.2009 u/s 138(b) of the negotiable Instruments Act, 1881thereby demanding payment of cheque amount within 15 days from the date of receipt of notice. The aforesaid demand notice was sent through Registered Post with A/D on 12.06.2009. The A/D card has been proved and marked exhibit 5 by the learned Magistrate. On completion of trial, the learned Magistrate convicted the accused/opposite party no. 1 as above. On appeal by the convict/accused/opposite party No. 1, the Sessions judge set aside the order of conviction and acquitted the accused.
6. Hence the revision praying for setting aside of the order of acquitted.
7. Mr. P. Roy learned counsel for the petitioner has submitted that the Ld. Addl. District & Session Judge, 1st Fast Track Court, Calcutta has grossly erred in setting aside the judgment of the 3rd Metropolitan Magistrate, Calcutta.
8. That the Judgment dated 07/08/2019 passed by the Ld. Addl. District & Session Judge, 1st Fast Track Court, Calcutta has been passed without applying his judicial mind which is bad in law.
9. The Session Judge, has failed to appreciate the evidence on record which clearly proves that the accused being opposite party no. 1 herein had issued the cheque voluntarily and without any pressure, coercion or undue influence.
10. The Ld. Addl. District & Session Judge, 1st Fast Track Court, Calcutta failed to consider the settled principle of law that the complainant in a cheque bounce case need not prove the “amount due” as if he has to prove a debit in civil court.
11. The Ld. Judge also failed to consider the legally settled principal that once the cheque is signed and issued by the drawer, the same has to be presumed to have been issued in discharge of legally enforceable liability.
12. The Ld. Judge also failed to notice the fact that the accused at no point of time issued any letter or communication to the complainant demanding return of the cheque or to supply the goods (which he now claims to not have received) which clearly shows that the accused had received the goods to the best of his satisfaction.
13. The Ld. Court failed to consider Exhibit-1 against which the goods were supplied to the accused.
14. The Ld. Court also failed to consider the fact that the defence lawyer put a suggestion before the complainant in his cross examination dated 31.08.2015 saying that the complainant forcibly got exhibit-1 (Promis
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