The court upheld the convictions under Section 138 of the Negotiable Instruments Act, affirming that dishonour of a cheque creates a statutory presumption of liability, which the accused failed to rebut with adequate evidence.

JUDGMENT :

AJAY KUMAR GUPTA, J.

1. This instant Criminal Revisional application has been filed under Section 401 read with Section 482 of the Code of Criminal Procedure, 1973 (In short Cr.P.C.) praying to set aside the judgment and order dated July 28, 2017 passed by the Learned Additional District and Sessions Judge, Bench-II, Calcutta in Criminal Revision Case No. 40 of 2017.

2. By the impugned Judgment and order, the Learned Judge affirmed the judgment and order dated 06.12.2016 passed by the Learned Metropolitan Magistrate, 8th Court at Calcutta in Complaint Case No. 3924 of 2009 filed under Section 138 of the Negotiable Instruments Act, 1881 (In short N.I. Act) whereby and whereunder the petitioners were convicted for offences punishable under of the N.I. Act. Consequently, Petitioner no. 1/Ma Kreeng Construction Pvt. Ltd. was sentenced to pay a compensation of an amount of Rs. 10,00,000/- (Rupees ten lakhs only) to the complainant within one month from the date of judgment, in default, the complainant will have the liberty to take appropriate legal steps against the convict company/petitioner no. 1. Petitioner nos. 2 and 3 were sentenced to suffer simple imprisonment for three months each and pay a compensation of an amount of Rs. 20,00,000/- (Rupees twenty lakhs only) each to the complainant within one month from the date of judgment, in default, to suffer further simple imprisonment for another one month each.

FACTS OF THE CASE

3. Brief facts of the case of the Complainant/Opposite Party no. 1 are as follows:-

a. The complainant/opposite party No.1 and his wife, Smt. Sharmila Saha had agreed to purchase an office space of approximately 2500 sq. ft. (super built-up area) on the first floor at premises No. 118, Raja Dinedra Street, P.S. Burtolla, Kolkata-700 004, from the petitioners, for a total consideration of Rs. 68,00,000/-, which was allegedly paid to the petitioners/accused in full, on different dates, on the basis of an agreement for sale.

b. In spite of full payment, the Petitioners failed to hand over possession or execute a conveyance deed. Thereafter, they agreed to refund the amount, with compensation aggregating to Rs.1,10,00,000/- (one crore ten lakhs), and executed a Refund Agreement dated 19.05.2009.

c. In discharge of partial liability, the Petitioners issued an account payee cheque bearing no. 092403 dated 23.08.2009 for a sum of Rs. 25,00,000/- drawn on Indian Overseas Bank to the Complainant. However, the cheque, when presented to the bank within the validity period, was dishonoured with the remark “Exceeds arrangement”

d. Despite a demand notice, the Petitioners failed to make payment. Thereafter, the complainant filed a case under section 138 of the N.I. Act. The case was disposed of by the Trial Court after conclusion of the trial, wherein the Trial Court convicted the petitioners and sentenced them as aforesaid.

e. The Petitioners herein contended that the refund agreement and cheque were obtained under coercion. Petitioners are denying the liability to pay the amount covered under the impugned cheque. As such, Petitioner no. 2 lodged a complaint to that effect with the concerned police station on 19.05.2009.

f. The petitioners also alleged that the consideration amount of Rs. 68,00,000/- has not been paid to the petitioners by the complainant. The latter could not show the source of such a huge payment.

g. The Learned Trial Court did not consider such facts while disposing of the proceeding, and convicted the petitioners under Section 138 of the N.I. Act, whimsically and capriciously, and further sentenced as af