Judicial Analysis Court Copy Headnote Facts Arguments Court observation

2025 Supreme(Cal) 587

IN THE HIGH COURT AT CALCUTTA
CHAITALI CHATTERJEE DAS, J.
Ram Narayan Guchait – Appellant
Versus
The State Of West Bengal & Anr. – Respondent
CRR 3770 OF 2008
Decided On : 21-08-2025

Advocates Appeared:
For the Appellants : Mr. Prabir Kr. Mitra, Sr. Adv., Mr. Prabir Kr. Mitra, Sr. Adv.
For the Respondents: Mr. Tanmoy Chowdhury.

The issuance of a cheque establishes liability under Section 138 of the Negotiable Instrument Act, requiring the accused to rebut the presumption of its validity, which he failed to do.

Headnote:(A) Negotiable Instrument Act, 1881 - Section 138 - Code of Criminal Procedure, 1973 - Sections 401, 397, 482 - Criminal appeal against conviction - Petitioner convicted for issuing a cheque that was dishonoured due to insufficiency of funds - Petitioner challenged the maintainability of the complaint for non-party involvement and summary trial procedure- Court held that a cheque's issuance was proven beyond reasonable doubt; no merit in the petition. (Paras 1-17)

Facts of the case:
The petitioner issued a cheque to discharge liability, but it was dishonoured. Despite a demand notice, he failed to pay. He was convicted by the Magistrate and the conviction was upheld by the appellate court.

Findings of Court:
Both the trial and appellate courts correctly affirmed the conviction under Section 138 of the Negotiable Instrument Act, emphasizing the validity of the cheque and the absence of any challenges to the evidence provided by the complainant.

Issues: Whether the complaint was maintainable without joining the firm and whether due process was followed in the trial.

Ratio Decidendi: The cheque issued was established beyond doubt by the complainant's evidence; procedural defects were not sufficient to quash the conviction.

Result: Revisional application dismissed.

Table of Content
1. factual basis of conviction under section 138 ni act. (Para 1 , 2)
2. arguments on procedural deficiencies and maintainability. (Para 3 , 4 , 5 , 6)
3. court's limited scope of intervention in concurrent findings. (Para 7 , 8)
4. legal principles regarding issuance of cheques and criminal liability. (Para 9 , 10 , 11 , 12 , 13 , 14)
5. affirmation of lower court's decision and final remarks. (Para 15 , 16)
6. dismissal of the revisional application. (Para 17 , 18)

Judgement :

CHAITALI CHATTERJEE DAS, J.

1. This is an application under Section 401 read with Section 397 and Section 482 of the Code of Criminal Procedure,1973 filed by the petitioner against an judgement and order dated September 4, 2008 passed by the Learned Additional Sessions Judge, 4th Court, Purba Medinipur in connection with criminal appeal no 23 of 2008, dismissing the appeal filed by the petitioner upholding the judgement and order passed by the Learned Judicial Magistrate, 3^rd Court, Purba Medinipur in C.R. case no 230 of 2006 passed on April 7, 2008 ,convicting the petitioner under Section 138 of Negotiable Instrument Act 1881 and sentencing the petitioner to suffer simple imprisonment for 2 years and to pay a fine of Rs. 10 thousand in default to go further simple imprisonment for 6 months.

2. The case of the petitioner emanated from the complaint lodged by the Opposite Party no. 2 under Section 138 of the Negotiable Instrument Act 1881, on May 8, 2006 alleging inter alia that the petitioner used to do business on credit from Opposite Party no 2 and in order to discharge his liability had issued a cheque amounting Rs. 18, 35,000 to the Opposite Party no. 2 and the same was dishonoured while depositing with the banker due to “insufficiency of fund”. It was further alleged that in spite of giving demand notice the petitioner failed to pay the money. Cognizance was taken in the matter and summons was issued by the Learned Court and accordingly the petitioner had to face the trial. The Learned Court passed the order of conviction vide order dated April 7, 2008 against which criminal appeal was preferred before the Learned Session Judge, Purba Medinipur registered as Criminal appeal no 23 of 2008.The Learned Additional Session Judge 4^th Court affirmed the order of conviction passed by the Judicial Magistrate, 3^rd Court by an order dated September 4, 2007. Being aggrieved thereby this revisional application has been filed.

3. The Learned Advocate appearing on behalf of the petitioner submitted that in the complaint the firm was not made a party nor the firm was notified under Section 138-B of the Negotiable Instrument Act. The petitioner while deposing as P.W.1 mentioned about two companies namely “Bescon and Pure Coke” who got the contract for construction of the petrol Pump but the accused belong to neither “Bescon and Pure Coke” . It is the contention of the learned advocate that the complaint was not maintainable on account of such deficiency and in this regard the Learned Advocate relied upon the following decisions ; MonabenKetanbhai Shah & Anr. Vs. State of Gujrat & Anr. (2004) 7 SCC 15, para 3,6,7,8, Maksud Saiyad vs State of Gujrat & Ors., [(2008) 5 SCC 668] Para 13, Sushil Shetty & Anr. Vs State of Arunachal Pradesh & Ors., [(2020) 3 SCC page 240], para 7.5 and 8.2.

4. It was further argued that the proceeding under Section 138 Negotiable Instrument Act ought to have been tried summarily by the First Class Judicial Magistrate or by a Metropolitan Magistrate after following the provision as enumerated under Section 262 to 265 of Cr.Pc. The Learned Advocate in this regard relied upon the decisions in RE; Suo motu writ petition (CRL) no 2 of 2020 decided on April 16, 2021 expeditious trial of cases under Section 138 of NI Act. where in para 24.1 it was observed.

24.1 That the Magistrate before converting a complaint case from summary trial to summons case, the Magistrate has to record the reasons otherwise the purpose for which Section 143 o