IMPORTANT POINT
Dishonour of cheque – When part payment has been made after debt was incurred and before cheque was encashed, entire cheque amount cannot be said to be legally enforceable debt.

JUDGMENT

Siddhartha Roy Chowdhury, J.—This criminal revision is a manifestation of displeasure of the petitioners who have been held guilty by the learned Court of 12th Metropolitan Magistrate, Calcutta for committing offence under Section 138/141 of the N.I. Act and the said order of conviction has been affirmed by the learned Additional District and Sessions Judge, 1st Fast Track Court, Bichar Bhavan, Calcutta.

2. Briefly stated, the complainant the Premier Medical Supplies and Stores filed a petition of complaint under Section 138 of the N.I. Act before the learned Chief Metropolitan Magistrate, Calcutta which was subsequently disposed of by learned 12th Court of Chief Metropolitan Magistrate, Calcutta. It was contended by the complainant that a cheque was issued by M/s. Pharma Traders, a partnership firm in discharge of their obligation in favour of the Premier Medical Supplies and Stores, to the tune of Rs.6,54,310.55/- drawn on United Bank of India, Santoshpur Branch, Kolkata-700 032 being cheque No.014124 dated 29th March, 1995 which was presented to the Bank by drawee dishonoured for want of fund. This fact was brought to the notice of the drawer of the cheque by giving a statutory notice calling upon the drawer of the cheque to pay the cheque amount which was not adhered to. Thus complaint case was filed.

3. Learned Trial Court after considering the evidence on record, disposed of the complaint case on 28th September, 2007 and thereby recorded an order of conviction. The said judgment and order of conviction was challenged in appeal being Criminal Appeal No.100 of 2007 and the learned Appellate Court by judgement dated 10th June, 2008 was pleased to remit the case with the direction upon the learned Trial Court to rewrite the judgement, taking into consideration the payment made by the accused persons and to revisit the quantum of compensation that was awarded by learned Trial Court. In consonance with direction of the Appellate Court, learned Trial Court disposed of the complaint case, taking into consideration the following fact: “........ and it also appears that D.W.1 during his cross-examination admitted that he did not make any payment in respect of the bills marked as Ext. 9 in this case.” While passing the impugned judgment learned Appellate Court did not consider it as a point to ponder. According to learned Appellate Court, the concern of learned Trial Court was the dishonour of cheque and the amount of cheque. It is held:- “It may be that the outstanding liability may vary but that is not to be considered. The demand notice, it is well settled, must correspond to the exact amount written in the cheque.” With the aforesaid observation of learned Trial Court was pleased to pass the order impugned. Mr. Ayan Bhattacharjee submits that learned Appellate Court failed to appreciate the statutory mandate as laid down under Section 56 of the N.I. Act. According to Mr. Bhattacharjee, a proceeding under Section 138 of the N.I. Act can be initiated if a cheque drawn by a person in discharge of, in whole or in part, any debt or any other liability, is returned by the bank unpaid for reason laid down in the statute itself.

4. Cheque must be issued in discharge of any debt or other liability either in whole or in part. Here admittedly after issuing the cheque, the drawer of the cheque made a payment of certain amount. From the judgement impugned it appears that a sum of Rs.6036.83/- was paid by the drawer of the cheque against bill No.3537 on 3rd April, 1995. After the cheque was drawn on 29th March, 1995 and before it was returned on 24th April, 1995. According to Mr. Bhattacharjee, this fact clearly indicates that the part payment was made before the cheque was presented through the bank. This part payment obviously reduced the quantum of liability from the shoulder of the accused person. Thus there was no reason for the learned Appellate Court to hold that the cheque was issued in discharge of either whole or part of l