The case established the importance of specific allegations and the requirement to arraign the company as an accused in matters of vicarious liability under Section 138 of the Negotiable Instruments Act.

JUDGMENT :

Shampa Dutt (Paul), J.

1. The present revision is against an Order No. 12 dated 29.05.2019 in the Criminal Revision No. 125 of 2018 passed by the Learned Addl. District & Session Judge (F.T.C. No. I) at Calcutta confirming the order of conviction and sentence dated 30.01.2018 passed by the Learned 17th M.M. in case no. C-24 of 2006 under Section 138 of Negotiable Instrument Act, 1881, in which the revisionist has been convicted and sentenced to pay compensation of Rs. 5,00,000/- (Five Lacs) to the complainant within two months I/D. suffer simple imprisonment for two months.

2. The complaint case in a nut-shell is that:-

“The accused person/petitioner issued a cheque of Rs. 4,00,000/- being no. 197890 dated 31.11.2005 drawn on UTI bank, Saltlake City Branch, Kolkata – 700 064 in discharge of existing financial liability. Subsequently the said cheque was dishonored with the remarks “insufficient Fund” when the said cheque was deposited in the bank for encashment. Subsequently the complainant herein i.e. the opposite party No.1 sent a demand notice dated 12.12.2005 by registered post with A/D through her learned advocate and the said letter was duly received by the accused/revisionist. But in spite of said knowledge, the accused/petitioner did not pay the said dishonoured cheque amount within the stipulated period and hence the case.”

3. The defence case is that the Petitioner/accused person issued the disputed cheque which was post dated, for the purpose of security for future but not in discharge of any self existing debt or liability but was issued for liability of another person. Actually one Gopal Chandra Biswas contracted with the financer Bhagirath Samanta for purchase of land and construction and Bhagirath Samanta gave to Gopal Chandra Biswas a sum of Rs. 1100000/- and the land was purchased. Thereafter Gopal Chandra Biswas and other landowners approached the petitioner/accused person to take up the job of construction work of the building over the land and accordingly the accused invested huge amount and started construction and completed up to maximum level. In the mean time the dispute arose between Gopal Chandra Biswas and financer Bhagirath Samanta for the monetary issue. And the accused intervened in the matter and issued the cheque being no. 197890 dated 30.11.2005 drawn on UTI bank, Saltlake in favour of financer Bhagirath Samanta with instruction that cheque should be presented for encashment when the accused person gives consent or permission but will not present the same without any notice to the accused person. But the complainant under conspiracy used the said cheque and filed this false case.

4. The petitioner states that he has explained all true facts and reason for issuance of cheques and its reason for dishonor before the trial court but Learned Court did not consider the submission of the petitioner/accused and giving the benefit of presumption under Section 139 of the N.I. Act 1881 convicted the petitioner and passed judgment/order which is nothing but full of errors and defective in the eye of law.

5. The petitioner against the order of conviction and sentence dated 30.01.2018 passed by the Learned 17th M.M. in connection with case no. C-24 of 2006, preferred one criminal revision, being Crl. Rev No. 125 of 2018.

6. The Learned Addl. District & Session Judge (F.T.C. No. I) at Calcutta on dated 29.05.2019 passed an order dismissing the revision application and affirmed the order of conviction.

7. Hence the revision.

8. The petitioner having not responded to the administrative notice, the learned legal aid counsel was appointed from the panel of the High Court Legal Service Committee.

9. In spite of due service of notice upon the opposite party/complainant there is no representation.

10. From the Judgment under revision, it is seen that the Learned Additional Session Judge has noted as follows:-

“Criminal Revision No. 125 of 2018

Order No. 12

Dated 29.05.2019

………………. Upon perusal of evidence