The issuance of a cheque raises a statutory presumption of liability under the N.I. Act that can only be rebutted through evidence in a trial.

JUDGMENT :

Bibhas Ranjan De, J.

Both the revision applications arising out of the self same cause of action and involving identical parties shall be disposed of via this common judgment.

Background:-

1. One complaint under Section 138 of the Negotiable Instrument Act, 1881 (for short N.I. Act) was filed before the Court of Additional Chief Judicial Magistrate invoking the provision of Section 200 of the Code of Criminal Procedure inter alia (for short CrPC) alleging that the complainant namely Mr. Ramachandra Hunasikatti transferred his equity shares in M/s. M.M.C Technologies (P) Limited to the accused for a total consideration of Rs. 56,13,345/-. The accused allegedly paid Rs. 11,00,000/- initially by an account payee cheque and for the balance consideration of Rs. 45,13,345/- the accused on 24.09.2018 issued 4 post dated account payee cheques drawn on HDFC Bank Limited, Stephen House Branch, Kolkata. On 18.12.2018 when those said cheques were deposited, all 4 cheques were dishonored with the remark ‘Funds Insufficient’. Thereafter, on 31.12.2018 a demand notice was sent to the accused by the Ld. Advocate of the complainant thereby demanding payment of Rs. 45,13,345/-. The said notice was duly received on 02.01.2019. Despite receiving the demand notice the accused deliberately and intentionally neglected to pay the amount of the dishonored cheques within the stipulated time and as a sequel, on 15.02.2019 a complaint was filed under Section 138 of the N. I. Act before the Court of Ld. Additional Chief Judicial Magistrate, Sealdah, South 24 Parganas and the Ld. Magistrate was pleased to take cognizance thereof and subsequently the matter was transferred to the Court of Ld.Judicial Magistrate, 1st Court, Sealdah.

In Re: 4782 of 2024

2. The instant revision application has been filed with a prayer for quashment of the criminal proceeding under Section 138 of the N.I. Act, arising out of Case No. N.I. Act 51 of 2019 presently pending before the Court of Ld. Judicial Magistrate, 1^st Court, Sealdah.

Argument Advanced:-

3. Mr. Md. Shahjahan Hossain, Ld. Counsel appearing on behalf of the petitioner , at the very outset has submitted before this Court that the petitioner had issued the impugned cheques as security cheques which is evident from the undated memorandum of understanding duly executed between the opposite party no. 2 and the petitioner and at the time of execution of the said instrument, an amount of Rs. 11 lacs was admittedly paid to the opposite party no. 2 as token advanced and the balance of the settled amount was to be paid in due course after deducting all statutory dues and liabilities of the company in lieu of tax liabilities. Ld. Counsel, Mr. Hossain further submitted that the undated security cheques duly signed by the petitioner were given in good faith so that all dues and liabilities of the opposite party no. 2 could be calculated and the parties could arrive at a settlement amount but the said settlement never took place. Therefore, the proceeding initiated against the petitioner cannot be said to be maintainable as there is no legally enforceable debt and/or dues and/or liabilities lying with the petitioner as of date.

4. Per contra, Mr. Ayan Bhattacharjee, Ld. Senior Counsel, appearing on behalf of the opposite party no. 2 has vociferously contended that the primary grounds on which the petitioner has sought quashing of the complaint under Section 138 of the N. I. Act cannot be said to be applicable in an application for quashing as Section 118 coupled with Section 139 of the N. I. Act raises a statutory presumption in favour of the payee that the cheque was