The validity of a cheque return memo is not contingent upon having an official mark so long as it adequately indicates dishonour, affirming the presumption under Section 146 of the Negotiable Instruments Act.

JUDGMENT :

Ajoy Kumar Mukherjee, J.

1. This appeal has been directed against judgment and order dated 29th November, 2022 passed by learned Judicial Magistrate, 10th Court Alipore, in AC 3447 of 2017. By the judgment impugned trial Judge has acquitted the accused person in a proceeding under section 138 of the Negotiable Instrument Act, (in short N.I. Act).

2. The gist of the case as alleged in the complaint is that, in discharge of a legally enforceable debt the accused/respondent herein had drawn a cheque being no. 747476, dated 16th September, 2016, amounting to Rs. 6 lakhs drawn on State of Bank of India in favour of the complainant. The complainant deposited the said cheque to his banker for encashment but by a cheque return memo, the complainant was informed by his banker i.e. Central Bank of India, Kalighat Junction Branch, that the cheque has been dishonored on the ground of ‘exceeds arrangements’. The complainant had allegedly received the information of such dishonor on 21st September, 2017. Thereafter, a letter demanding the cheque amount was sent by the complainant which was refused to accept by the accused/ opposite party on 25.09.2017. Since the accused failed to pay the cheque amount within the statutory period, the aforesaid criminal proceeding has been initiated by the complainant under section 138 of the N.I. Act.

3. Affidavit of service filed by the petitioner discloses that the accused opposite party no.2, refused to take notice, as appearing from postal endorsement dated 09.01.2025. The accused/opposite party herein was also not represented while the matter was taken up for consideration on consecutive dates.

4. Ld. Trial court at the time of passing impugned judgment framed 10 points for consideration which are as follows:-

Points for determination

(1) Whether the complaint was filed within limitation period?

(2) Whether the cheque in question was issued by the accused person for payment of a sum of money to the complainant?

(3) Whether the cheque in question was issued for the discharge, either in whole or in part of any debt or other legal liability?

(4) Whether the impugned cheque dishonored by the bank on having been presented within three months from the date on which it was drawn or within the period of its validity?

(5) Whether the payee or the holder-in-due course, has made a demand for payment of the said amount by giving notice in writing to the drawer of the cheque within the stipulated period prescribed by law, of the receipt of information by him from the bank regarding the return of the cheque as unpaid?

(6) Whether the demand notice was valid and legal one?

(7) Whether the demand notice was properly served upon the drawer of the impugned cheque?

(8) Whether the drawer failed to make the payment of the said amount to the payee within fifteen days of the receipt of such notice?

(9) Whether the complaint case is proved beyond reasonable doubt?

(10) Whether the accused person is liable to be convicted?

5. Learned Trial court while passed the judgment impugned, clearly held that above-mentioned point no.1, 2,3,5,6,7,8 are decided in favour of the complainant, however in respect of point no. 4 as above, Trial court decided the issue against the complainant and thereby dismissed the complaint deciding point no.9 and 10 against the complainant. The relevant portion of the judgment impugned may be quoted below:-

“S. 146 of the Act makes a bank’s slip or memo, bearing official mark denoting that the cheque has been dishonoured, as the prima facie evidence of the dishonour of such cheque. A detailed scrutiny of the return memo reveals that the same is just a print out sans any stamp or seal of the banker of the complainant, i.e., wi