Sanjib Kumar Ghosh vs Dolon Adhikari and Others

Indrajit Chatterjee, J—This appeal has been directed as against the judgment and order of acquittal 28.06.13 passed by the Judicial Magistrate, 4th Court cum Railway Magistrate, Sealdah in Complaint Case No. C/87/11 under Section 138 of the N.I. Act in which he was pleased to acquit the accused in respect of the charge.

The case before the Trial Court can be summarized thus;-

"That the complainant of this case who is the appellant before this Court is the proprietor of "Fin Trust Financial Services" and the present respondent is a relation of the complainant. This respondent was the accused before the Trial Court who approached the complainant for some accommodation load as he was a need of urgent money and the complainant agreed to give the personal loan to the said accused. It was agreed that the loan would be repaid by issuing cross cheques. This accused gave one cheque of Rs. 50,000/- being cheque No. 316567 dated 30.09.2010. drawn on Canara Bank, Salt Lake City Branch, Kolkata-700106 and assured the complainant that the cheque would be duly honoured. The cheque was presented before the Bank of Baroda, Belghoria Branch on 11.11.2010 but the said cheque returned with the mark "Fund Insufficient" vide memo dated 12.11.2010. On receipt of this accused was served with a demand notice and on receipt of such demand notice the accused did not care to make payment to the complainant-appellant and as such the complaint under Section 138 of the Negotiable Instruments Act, 1881(hereinafter referred to as the said act) was filed. The case was transferred to the present Trial Court after cognizance was taken by the filing Court. The accused was examined under Section 251 of the Cr. P.C. in respect of the charge under Section 138 of the said Act to which the accused pleaded not guilty and claimed to be tried. Therefore the trial started."

To prove the case of the complainant-appellant before the Trial Court one witness Sanjib Kumar Ghosh was examined as PW I and through his evidence four documents were proved namely (1) a cheque, (2) bank return memo, (3) photocopy of the demand notice and (4) A/D Card.

The accused did not face the dock. On his behalf one sheet of paper written by the complainant was marked as Exbt. A. The accused was examined under Section 313 of the Cr. P.C. The case as made out by the accused before the Trial Court was that he issued the cheque but did not do so in discharge of existing liability. The accused did not deny that he did not issue the said cheque or that he did not receive any demand notice. The learned Trial Court in its judgment acquitted the accused only on the ground that Exbt. 4 did not bear any postal stamp and that Exbt. 3 was a photocopy of the demand notice. Regarding other aspect of the claim, the learned Trial Court held that "from the above analysis I have strong reservation to accept the claim of the defence that complainant is a professional money lender". (Internal Page No. 7 of the judgment).

The learned Trial Court also observed in that judgment that;-

"In this case the complainant has claimed that there was an agreement in between in (sic) him and the accused that the loan given to the accused was to be returned by some cheques. The accused has not denied the fact during the cross examination of the complainant and not only that has not the accused has not adduced any evidence in order to substantiate his claim that the cheque was given by him as security. The security given by drawing a cheque can give rise to a cause of action on dishonour of the said cheque if the same was given in discharge of debt or other liability, either in whole or part and the said debt or other liability was legally enforceable. The Hon''ble Apex Court in the case of I.C.D.S. Ltd. Vs. Beena Shabeer and Another, AIR 2002 SC 3014 : (2002) 3 BC 310 : (2002) 111 CompCas 742 : (2002) 4 CompLJ 359 : (2002) CriLJ 3935 : (2002) 4 Crimes 75 : (2002) 6 JT 119 : (2002) 5 SCALE 541 : (2002) 6 SCC 426 : (2002) 39 SCL 305 : (2002) 1 SCR 488 Supp : (2002) 2 UJ 1186 : (2002) AIRSCW 3358 : (2002) 6 Supreme 25 that the words "any cheque" and "other liability" occurring in sec. 138 are the two key expressions which stand as clarifying the legislative intent so as to bring the factual context within the ambit of the provisions of the statute. These expressions leave no manner of doubt that for whatever reason it may be the liability, the rigors of sec. 138 cannot be avoided in the event the cheque stands returned by the banker unpaid. Relying on this decision of the Hon''ble Apex Court, it has been held by the Hon''ble Kerala High Court in the case of M/s. General Auto Sales Vs. Vijalakshmi D., (2005) 2 BC 597 : (2005) CriLJ 1454 : (2005) 1 ILR (Ker) 395 : (2005) 1 KLJ 301 : (2005) 1 KLT 478 that the cheque given as security, when bounced, shall be the subject-matter of a prosecution under sec. 138. From the aforesaid analysis I am of the considerate (sic) opinion that in this case the cheque was issued for the repayment of loan but not merely as a security and the accused has taken the plea that the cheque was given as a security only to avoid penal liability u/s. 138 NI Act and accordingly the dishonour of the said cheque attracts section 138 of NI Act." (Internal Page Nos. 7 & 8 of the judgment)."

Here in I like to add the presumption in favour of the holder of the cheque as per Section 139 of the said act. That section runs thus: "it shall be presumed, unless the contrary is proved, that the holder of a cheque receive the cheque of the nature referred to in Section 138 for the discharge, in whole or in part, of any debt or other liability". Thus this is a rebuttable presumption. Unfortunately the accused respondent failed to rebut this presumption.

The learned Trial Court further observed that even though the accused admitted in issuance of cheque the accused did not adduce any oral evidence to disprove his liability. The learned Trial Court further observed in internal page No. 9 of the judgment that "From the above analysis I am of the considerate (sic) opinion that the accused has failed to prove by adducing cogent evidence that he has paid the cheque amount to the complainant. The accused never denied about the loan advanced by the complainant."

The Trial Court also believed that the memo issued by the banker dated 12.11.2011 with the mark "Fund Insufficient" which was the reason for dishonouring the cheque. Thereafter the trouble started for the present appellant. Suddenly the learned Trial Court on scrutiny of the A/D Card (Exbt. 4) held that the A/D card did not bear any endorsement of the postal peon or any stamp of the post office. He also tried to disclaim Exbt. 3 on the ground that it was a photocopy of the demand notice. The learned Trial Court also held through these two documents that the complainant have failed to prove by adducing cogent evidence that demand notice was issued at all and that was served on the accused. Regarding the service of the demand notice the Trial Court relied upon the decision of the Apex Court as reported in D. Vinod Shivappa Vs. Nanda Belliappa, AIR 2006 SC 2179 : (2006) 3 BC 465 : (2006) 131 CompCas 663 : (2006) CriLJ 2897 : (2006) 3 CTC 591 : (2006) 11 JT 187 : (2006) 143 PLR 787 : (2006) 6 SCALE 277 : (2006) 6 SCC 456 : (2006) 3 SCR 1008 Supp : (2006) AIRSCW 2757 : (2006) 4 Supreme 540 .

Thus on reading a re-reading of the judgment it appears to this Court that the learned Trial Court was satisfied regarding the case of the complainant-appellant that the questioned cheque was issued in discharge of existing liability but the claim of the appellant did not advance further on the technical ground as I have already stated.

It was submitted by the learned advocate appearing on behalf of the appellant by taking me to the decision of the Apex Court reported in Indo Automobiles Vs. Jai Durga Enterprises and Others, AIR 2009 SC 386 : (2008) 4 BC 531 : (2009) CriLJ 326 : (2008) 4 CTC 190 : (2008) 10 SCALE 373 : (2008) 8 SCC 529 wherein the Apex Court held in paragraph 8;-

"Admittedly, notice under Section 138-B of the Negotiable Instruments Act was sent to the respondents through registered post and under a certificate of posting on the correct address of the respondents. The High Court had quashed proceeding on the ground that although notice through registered post and also under certificate of posting were sent by the appellant/complainant to the respondents but because of the endorsement of the postal peon, the service could not be said to have been effected. In our view, the High Court was not justified in holding that service of notice could not be found to be valid."

In that decision the Apex Court also relied upon its own decision as reported in K. Bhaskaran Vs. Sankaran Vaidhyan Balan and Another, AIR 1999 SC 3762 : (2005) 3 BC 158 : (2000) 99 CompCas 268 : (1999) CriLJ 4606 : (1999) 3 Crimes 212 : (1999) 3 CTC 358 : (1999) 7 JT 558 : (2000) 124 PLR 113 : (1999) 6 SCALE 272 : (1999) 7 SCC 510 : (1999) 3 SCR 271 Supp : (1999) 2 UJ 1529 : (1999) AIRSCW 3809 : (1999) 8 Supreme 608 wherein it held that the context of Section 138-B of the Negotiable Instruments Act, 1881 invites a liberal interpretation favouring the person who has the statutory obligation to give notice under the act because he must be presumed to be the loser in the transaction and provision itself has been made in his interest and if a strict interpretation is asked for that would give handle to the trickster cheque drawer.

Learned advocate appearing on behalf of the appellant further submitted by taking me to the evidence of PW I and also the examination of the accused under Section 313 of the Cr. P.C. that nowhere the accused has denied the acceptance of any such notice, issuance of cheque or that he did not sign on the A/D card which was marked as Exbt. 4 through the evidence of PW I. He suggested that the admitted documents need not be approved. It was his further argument that the learned Trial Court disposed of the main issues in favour of the present appellant and the learned Trial Court did not consider the legal aspect that a document which has not been denied in cross-examination cannot be disputed at the stage of writing of the judgment. It may be mentioned that no cross appeal is pending.

In counter to all this Mr. Rana Mukhopadhyay, learned advocate appearing on behalf of the petitioner submitted by taking me to the Single Bench decision of this Court as reported in Shibu Chakraborty Vs. Arati Poddar and Another, 100 CWN 415 wherein the single judge of this court held that service of demand notice is an essential ingredient of offence under Section 138 of the N.I. Act, 1881. It was further held that legal factors cannot be ignored in any prosecution.

I have gone through this decision it is apparent from the judgment that the lawyer''s letter (demand notice) which was sent to the accused was not produced, nor it was known whether the letter was at all delivered to the accused and as such this Court took the view that the vital document was not proved.

The aforesaid decision will not apply in the present case as in the case before this Court the existence of the demand notice and also the A/D card was not in dispute by the accused when PW I proved those documents. Those documents were marked as exhibits after giving due opportunities to the parties.

Now the question is whether the learned Trial Court erred in disbelieving that A/D card simply because there was no endorsement of the postal peon. I have also stated that those documents were marked as exhibits in open Court and on proof. No question was put by the accused in the cross-examination of PW-1 to challenge the veracity of those two documents. I have perused the reverse side of the A/D card there is one signature of one D. Adhikary. The attention of PW-1 was not drawn in respect of that signature to deny that it was signed by the present respondent Dolon Adhikary.

Thus this court is of the firm view that the learned trial court did not consider the fact that the said A/D card which was marked as Ext. 4 was not in dispute. Similarly doubt was raised by the learned trial court regarding Ext. 3 which is admittedly one photocopy of the demand notice issued to the respondent. I have gone through the examination of PW-1 nothing was told to this witness as to the photocopy of that document. It is true that a photocopy itself is not admissible in evidence, if it is a disputed document, but if no dispute is raised and the said document is marked as exhibit without any objection from the other side then the court will definitely come to the conclusion that it was one admitted document.

To illustrate the matter further the photocopy of a document in dispute cannot be marked as exhibit unless the original is produced. But if the document is not disputed at the time of the trial the said exhibited document cannot be held to be not a valid document at the time of writing of the judgment.

I have gone through the judgment. The other points have been answered by the learned trial court in the affirmative about which I have discussed in details in previous paragraphs. Thus this court is satisfied that the learned trial court wrongly decided the issue as regards Exts. 3 and 4. The order of acquittal was also wrongly passed and it is a fit case to be set aside and I do that.

Hence the respondent Dolon Adhikary is found guilty in respect of the charge punishable under Section 138 of the N.I. Act. The cheque amount was Rs. 50,000/- and it was issued in the year 2010. Thus, more or less five years have passed in this legal battle. The appellant is to be duly compensated. Thus, considering every aspect the accused appellant is sentenced to suffer R.I. for ten days and also to pay compensation amount under Section 357(3) of the Cr.P.C. to the tune of Rs. 1,00,000/- (one lakh) to be paid to the present appellant. Such compensation must be paid within one month from this day. The respondent convict may note that if this amount is not paid he will have to suffer further period of rigorous imprisonment for one year.

Let a copy of this judgment be forwarded to the learned trial court along with the LCR for necessary action.

The accused respondent must surrender before the learned trial court to serve out the sentence within 21 days from this day, failure to surrender on the part of the appellant will lead to issuance of warrant of arrest as against him by the learned trial court.

Criminal section is directed to transmit the LCR by special messenger at the cost of the court to the learned trial court at once.

This appeal is thus allowed without any order as to costs.

Urgent certified copy be issued to the parties as per rules.