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2024 Supreme(Cal) 601
IN THE HIGH COURT AT CALCUTTA
Ananya Bandyopadhyay, J.
Sri Gautam Pal – Petitioner
Versus
Sri Sourish Dirghangi & Anr. – Respondents
C.R.A. 775 of 2008
Decided On : 09-01-2024
Advocate Appeared:
For the Amicus Curiae : Mr. Amartya Ghosh
For the Respondent: Mr. Avishek Sinha, Mr. Jayanta Naryan Chatterjee, Ms. Sreeparna Ghosh
The central legal point established in the judgment is that the presumption of liability under Section 138 of the Negotiable Instrument Act 1881 can be rebutted by proving the issuance of the cheque as security and not as a legally enforceable liability.
Headnote:
Negotiable Instrument Act - Dishonor of Cheque - Section 138 of the Negotiable Instrument Act 1881 - Section 255(1) of the Code of Criminal Procedure 1973
Fact of the Case:
The appellant, an accounts officer of a company, filed a complaint under Section 138 of the Negotiable Instrument Act 1881 against the opposite party for dishonor of a cheque. The opposite party was acquitted by the Trial Court, and the appellant appealed against this decision.
Finding of the Court:
The Trial Court acquitted the opposite party on the ground that the appellant's case was not proved beyond all reasonable doubt. The court found that the cheque was issued as security and not as a legally enforceable liability, and therefore, acquitted the accused.
Issues: The main issue was whether there was a legally enforceable liability for the issuance of the cheque by the opposite party.
Ratio Decidendi: The court emphasized that under Section 138 of the Negotiable Instrument Act 1881, the presumption of liability is to be deduced in respect of issuance of cheque unless any contrary is proved. It held that in the absence of any legally enforceable debt or liability, the accused was rightly acquitted.
Final Decision: The criminal appeal was dismissed, and the accused was acquitted. No costs were awarded to either party.
JUDGMENT :
Ananya Bandyopadhyay, J.
1. This appeal is preferred against the judgment and order passed by the Learned Judicial Magistrate, 9th Court at Alipore, 24 Parganas in Case No. C-5076 of 2004, on 23rd November 2007 acquitting the accused under Section 255(1) of the Code of Criminal Procedure 1973.
2. The appellant filed an application for special leave to appeal before the Hon’ble Court on 02.06.2008 vide CRM 5438 of 2008 and subsequently on 12.11.2008 the said application was allowed. Hence this appeal.
3. The petitioner is the accounts Officer of M/s. Karnataka Soaps And Detergent Limited (A Govt. Of Karnataka Under Taking) having its Registered office at 154, Harish Mukherjee Road, P.S.- Kalighat, Kolkata-25 and has been authorized to file this appeal.
4. The opposite party no. 1 was the accused in connection with case no. C-5076/2003 and by the Judgment and Order dated 23.11.2007 passed by the Learned 9th Judicial Magistrate Alipore, 24 Parganas acquitted the opposite party no. 1 under Section 255(1) of the Code of Criminal Procedure 1973 from the offence charged under Section 138 of the Negotiable Instrument Act 1881.
5. The appellant company has been operating the business of sales and marketing of its own product like Soaps, Detergent, Consumer Goods Agar Batis from the branch office at Kolkata.
6. The appellant used to supply its products to the opposite party no.1 who was a distributor under the appellant and for 4 to 5 years prior to the year 2003 the appellant recognized the opposite party no.1 as a distributor.
7. In discharge of the liability of payments of the goods/products received, the opposite party no.1 issued one cheque bearing no. 032852 drawn on Allahabad Bank, B B Chatterjee Street Branch.
8. The appellant company presented the said cheque to his banker Corporation Bank Rash Behari Avenue Branch to realize the amount due from the opposite party no.1 out of the products/goods which was sold to the opposite party no.1 but the said cheque was dishonored on the ground of “Insufficient Funds” and thereafter the appellant sent a demand notice to the opposite party no.1. After expiring of the time stipulated by the appellant in the said demand notice, the appellant filed a complaint under Section 200 of the Code of Criminal Procedure 1973 before the Learned Sub Judicial Magistrate at Alipore. Thereafter the said case was transferred to the Court of the Learned 9th Judicial Magistrate at Alipore. After completion of trial, the 9th Judicial Magistrate at Alipore was pleased to acquit the opposite party no.1 under Section 255(1) of the Code of Criminal Procedure 1973.
9. The Learned 9th Judicial Magistrate at Alipore was pleased to acquit the respondent on the ground that the case of the appellant was not proved beyond all reasonable doubt.
10. In support of its case, prosecution adduced evidence of two witnesses namely Ujjal Kumar Nandy the complainant and the authorized representative of the complainant company and Swapan Kumar Ganguly a staff of the complainant company and in support of its case, defence adduced one witness namely Sourish Dirghangi the opposite party no.1
11. From the deposition of the witnesses of the prosecution as well as the defence the cheque was issued by the opposite party no.1, was presented by the appellant at the bank within time. The cheque was dishonored, demand notice was sent to the opposite party no.1 by the appellant and the said demand notice was received by the opposite party no. Thereafter due to non payment the complaint was filed within the time specified in the Section 138 of the Negotiable Instrument Act 1881 as amended upto date.
12. The only point was raised during trial of the instant case as to whether there was any liability of the complainant to issue the said cheque or not.
13. As per Section 138 of the Negotiable Instrument Act 1881 as amended upto date apart from all other technical factors liability is the only important factor with regard to each and every case of dis
