The issuance of a signed blank cheque creates a rebuttable statutory presumption of a legally enforceable debt. The holder of the cheque has the authority to fill in the particulars, and the drawer bears the burden of proving that no such debt or liability existed at the time of dishonour.

JUDGMENT :

CHAITALI CHATTERJEE DAS, J.

1. This is an application under Section 378(3) of the Code of Criminal Procedure, 1973 against an judgement and order of acquittal dated 30.6.2006 delivered by the learned Metropolitan Magistrate, 5th Court, Calcutta in case no. 672/95 corresponding to T.R number 352/95, under Section 138/141 of Negotiable Instrument Act .

Brief resume of the case

2. It is the case of the present petitioner that on the basis of a complaint filed on behalf of the complainant /petitioner under Section 138 read with Section 141 of the Negotiable Instrumental Act before the learned Chief Metropolitan Magistrate, Calcutta, the complaint case was initiated against the present respondent and the cognizance was taken and transferred the case to the court of learned Metropolitan Magistrate, 5th Court, Calcutta for enquiry, trial and disposal. The allegations made in the petition of complaint were as follows; The accused No.1 a partnership firm and accused no. 2 to 4 are the partners of the accused no.1 and responsible for the day-to-day conduct of the business of the accused no.1. The accused persons in discharge of their liabilities issued an account pay cheque dated 28.3.1995 amounting to Rs. 1, 89, 363.54 paisa drawn on United Bank of India, Santoshpur Branch, Kolkata -7000 32.

3. The complainant duly presented the said cheque with its banker at Kolkata Main branch, but the said cheque was returned on 25.4.1995, with the remark insufficiency of funds, as there was no sufficient money in the account of the accused to honour the cheque. It was further alleged that the complainant thereafter send a notice on 4.5.1995, intimating about the dishonour of the said cheque and thereby called upon the accused persons to pay the sum of Rs. 1, 89, 363.54p within 15 days from the receipt of the said notice. The accused persons received the said notice on 6.5.1995, 8.5.1995 and 10.5.1995, however, they ignored to pay any amount towards the dishonoured cheque . It was further alleged that accused persons issued the said Cheque in discharge of its existing liability and the same was returned dishonoured for insufficiency of funds, and in spite of demand, they refused to pay and as such made themselves liable to be prosecuted under section 138, read with section 141 of the Negotiable Instrument Act.

4. The learned Metropolitan Magistrate 5th court, Calcutta after hearing arguments passed the order of acquittal against which a criminal appeal no. 355 of 2001 was filed before this court and by the judgement and order dated 4.1.2006 allowed the appeal by setting aside the order of acquittal passed by the learned Metropolitan Magistrate and remand back case to the same court. On remand the learned Magistrate after hearing the arguments advanced on behalf of the complainant and the accused persons again passed the order of acquittal. Being aggrieved thereby this Special leave to Appeal has been filed. In this case, despite administrative notice served upon the petitioner none responded and accordingly, Mr Soham Banerjee was engaged as Amicus Curiae.

Submission

5. The Learned amicus curiae argued that the learned Magistrate did not consider that the cheque in question was issued in discharge of legally enforceable, debt and liabilities, and the earlier judgement of the same court did no