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IN THE HIGH COURT AT CALCUTTA
SHAMPA DUTT (PAUL), J.
Sri Sarit Kumar Bose @ Sarit Kumar Basu – Appellant
Versus
Smt. Rita Mallick & Anr. – Respondents
CRR 1403 of 2019 With CRAN 1 of 2019(Old No. CRAN 3608 of 2019)
Decided on : 17-01-2024
N.I. Act - Dishonour of Cheque - Section 138 - 138 - Summary: The court discussed the importance of the service of notice in proceedings under Section 138 of the N.I. Act and emphasized that a proper notice is a must for maintainability of a case for dishonour of cheque. The judgment was set aside as the conviction was solely based on the accused's admission during examination under Section 313 Cr.P.C., without evidence proving the service of notice.
Fact of the Case:
The complainant gave a loan to the petitioner, who issued a cheque that was dishonoured due to insufficient funds. The Trial Court convicted the petitioner, and the Appellate Court modified the compensation amount. The petitioner argued that the notice mandatory under Section 138 N.I. Act was not proved before the courts.
Finding of the Court:
The judgment and order under revision and the judgment of the Trial Court were set aside as the conviction was solely based on the accused's admission during examination under Section 313 Cr.P.C., without evidence proving the service of notice.
Issues: The issues revolved around the proof of the mandatory notice under Section 138 N.I. Act and the reliance on the accused's admission during examination under Section 313 Cr.P.C. for conviction.
Ratio Decidendi: The court emphasized the importance of a proper notice for maintainability of a case under Section 138 of the N.I. Act and highlighted that conviction cannot be solely based on the accused's admission during examination under Section 313 Cr.P.C.
Final Decision: The judgment and order under revision and the judgment of the Trial Court were set aside, and the petitioner was acquitted of the charge under Section 138 N.I. Act.
JUDGMENT :
Shampa Dutt (Paul), J.
1. The present revision has been preferred against an order and judgment dated 19.02.2019 passed by the Learned Additional District & Sessions Judge, Fast Track, Court No. 3 at Barrackpore in Criminal Appeal No. 34/2015 which modified the judgment dated 07.03.2015 passed by the Learned 5th Court of Judicial Magistrate at Barrackpore in C. Case No. 84/2008 under Section 138 of N.I. Act and thereby directed the present revisionist to pay compensation of Rs. 2,00,000/- instead of Rs. 2,25,000/- to the complainant/respondent within 4 months from the date of this judgment, in default to suffer simple imprisonment for 4 months.
2. In spite of due service there is no representation on behalf of the opposite party no. 1.
3. The case of the Opposite Party no.1/Complainant is that the Opposite Party no.1 after being requested by the present appellant, gave a loan of Rs. 1.5 lacs to him on 18.04.2003 and on 01.08.2007 the petitioner issued a cheque vide no. 484634 dated 01.08.2007 which was deposited by the Opposite Party no.1 and lastly on 04.08.2007 she was informed that it was dishonoured due to insufficient fund.
4. Further case of the Opposite Party no.1 is that she again deposited the said cheque on 02.01.2008 and at that time she was informed that the appellant had already closed his account and on 07/08.01.2008 she sent a legal notice which was sent back on 09.02.2008 and on 13.02.2008 she filed this case. A case under Section 138 N.I. being maintainable when cheque is dishonoured due to amount being closed. (NEPC Micon Limited and Ors. vs Magma Leasing Limited, on 29.04.1999 by the Supreme Court in AIR 1999 SC 1952).
5. On completion of trial, by a judgment and order dated 07.03.2015, the Learned 5th Court of Judicial Magistrate in C. Case no. 84/2008 was pleased to pass an order of conviction under Section 255(2) Cr.P.C. directing payment of compensation of Rs. 2,25,000/- in default to suffer S.I. for six months.
6. On appeal by the Judgment/Order under revision, the Learned Additional Sessions Judge, FTC-3, Barrackpore allowed the Appeal in part and directed as follows:-
Criminal Appeal No. 34 of 2015
On 19.02.2019
“…………That the appeal be and the same is allowed in part.
The judgment dated 07.03.2015 passed by Learned Judicial Magistrate, 5th Court, Barrackpore in C. Case no. 84 of 2008 under Section 138 of the Negotiable Instrument Act, by which the appellant has been convicted under Section 255(2) Cr.P.C. is hereby affirmed.
The sentence of imprisonment for six months passed by Learned Magistrate along with a compensation of Rs. 2,25,000/- awarded by the judgment is modified and convict/appellant is directed to pay compensation of Rs. 2,00,000/- to complainant/respondent within four months from the date of this judgment in default to suffer simple imprisonment for four months………..”
Sd/-
Additional Sessions Judge
FTC-3, Barrackpore
7. The petitioner submits that the notice mandatory under Section 138 N.I. Act has not been proved before the Trial or the Appellate Court, as the said notice or its receipts etc. has not been exhibited before the said Courts.
8. Learned counsel for the petitioner has filed certified copies of relevant documents in the Trial Court records.
9. From the said certified copies it appears from the deposition of the complainant (P.W.1), that the demand notice as required under Section 138 N.I. Act has not been proved before the Trial Court. There is no such exhibit on record.
10. The defence of the petitioner before the Trial Court is that he did not issue the cheque in question in favour of the complainant. The said cheque was missing. He has deposed as D.W.1 stating further that the account relating to the said cheque was closed in the year 2003-2004, though on being cross examined, he stated that he signed on a blank cheque, Ext-3 is the Bank’s Cheque return memo, which shows that the cheque was not returned due to insufficient funds (as stated by the complainant), it was return
The importance of a proper notice for maintainability of a case under Section 138 of the N.I. Act and the inadmissibility of conviction solely based on the accused's admission during examination unde....
The main legal principle established is that the sufficiency of a notice of demand for a dishonoured cheque under Section 138 of the N.I. Act does not require explicit language demanding the cheque a....
The judgment highlights the significance of a valid notice as the foundation of a case under Section 138 of the N.I. Act and the necessity to comply with the statutory requirements for the notice to ....
The legal principle established is the need for a liberal interpretation of the provisions related to the service of notice under Section 138 of the NI Act to protect the interests of the payee and p....
For a conviction under Section 138, the complainant must prove both enforceable debt and properly served demand notice; failure to do so leads to acquittal.
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