Ashoke Kumar Gupta vs Kankan Kumar Das and Others

Subrata Talukdar, J.

The grievance of the petitioner in this CRR is directed against the judgment and order dated 13th April, 2011 passed by the Ld. 5th Additional Sessions Fast Track Court, Barasat in Criminal Appeal No. 23 of 2010 affirming the judgment and order of conviction passed by the Ld. 2nd Judicial Magistrate, Barasat in Complaint Case No. 503 of 2002 sentencing the petitioner to pay a fine of Rs. 97, 000/-, in default to suffer simple imprisonment for six months in a proceeding under Section 138 of the Negotiable Instruments Act, 1881 (for short the NI Act).

Sri Siladitya Sanyal, Ld. Counsel for the petitioner raises the point of the jurisdiction of the Ld. Magistrate to hear the complaint. Placing paragraphs 2, 3 and 6 of the complaint at pages 17 and 19 of the CRR, Sri Sanyal argues that the cheque in question was drawn on the Bank of Maharashtra, Firingi Kalibari Branch, Kolkata-12. Ld. Counsel further argues that the cheque was handed over to the complainant at Kolkata and such is the admitted position which will appear from the evidence of the complainant and recorded at page 24 of the CRR.

The fact that the cheque was returned with the endorsement "refer to drawer" and remained unpaid to the complainant at Habra Bazar, P.O. + P.S.- Habra, Dist.- North 24 Parganas did not confer jurisdiction on the Ld. Magistrate at Barasat to entertain the complaint.

Sri Sanyal strongly relies upon the judgments reported in 2013 (3) CHN (Cal) 664, 2008 (2) SCC (Cri) 166 and 2011 (1) SCC (Cri) 184 to urge the additional point that the complainant has failed to satisfy that the cheque was issued in respect of a legally enforceable debt or liability.

Relying on the provisions of the Section 139 NI Act Sri Sanyal, Ld. Counsel points out that the presumption of dishonour of a cheque in respect of a legally enforceable debt or liability is a rebuttable presumption. Such presumption has not been satisfactorily answered by the Ld. Appellate Court while confirming the order of conviction passed by the Ld. Magistrate.

Per contra, Sri Kamalesh Saha, Ld. Counsel for the Opposite Party submits that from the reply of the petitioner to the complainant against the notice under Section 138 NI Act it shall be apparent that the legally enforceable debt or liability is admitted. Taking this Court to the evidence of DW1, the petitioner herein, appearing at page 31 of the CRR and of the evidence of DW2, officer of the Bank of Maharashtra, Firingi Bazar Branch, i.e. the drawee bank appearing at page 33 of the CRR, Sri Saha submits that the evidence on record is clear on the issue of the cheque being connected to a legally enforceable debt or liability.

On the question of jurisdiction Sri Saha refers to the judgment of the Hon''ble Apex Court reported in 2014 (3) AICLR 944 in the matter of Dashrath Rup Singh Rathod v. State of Maharashtra and Anr. and submits that while the Hon''ble Apex Court confined the filing of a complaint under Section 138 NI Act to the court of the Ld. Magistrate within whose local jurisdiction the offence was committed, i.e. where the cheque was dishonoured by the bank on which it was drawn, at the same time it was clarified that in the pending cases post the summoning and appearance of the accused where the recording of evidence has commenced as envisaged in Section 145(2) of the NI Act, the proceedings will continue before the Ld. Magistrate where they have been already filed or pending.

Ld. Counsel, Sri Saha further argues that in respect of the classes of cases where evidence has been placed before the Ld. Court at the pre-summoning stage either by affidavit or by oral statement the complaint will be maintainable only at the place where the cheque stands dishonoured. In respect of cases where proceedings have gone to the stage of Section 145(2) of the NI Act or beyond shall be deemed to have been transferred from the Court ordinarily possessing territorial jurisdiction, as clarified in the judgment, to the Court where such proceedings are presently pending.

Sri Saha, Ld. Counsel also points out that in the facts of the present case the proceedings have already culminated in the sentence of fine against the petitioner-accused. Such conviction has been challenged in appeal which has been dismissed. At this stage therefore the point of territorial jurisdiction is clearly not available to the petitioner.

Having heard the parties and on scrutiny of the judgment of the Ld. Appellate Court this Court finds that the Ld. Appellate Court has given a detailed analysis of the facts in issue linking the cheque to the discharge of liability qua the complainant. The relevant paragraphs from the judgment of the Ld. Appellate Court as appearing at pages 47 and 48 of the CRR (internal page 5 of the judgment) read as follows:-

"...From the evidence of D.W.1 we find that he had given one Rajendra Dhandania two blank cheques bearing his signatures being No. 290624 and 290625 in the month of April, 2000 i.e. ext-B and ext-1 respectively. But we find from the evidence of his own witness D.W.2 wherein he has stated that ext-B had been issued in the name of the complainant by the accd. and ext-1 had been issued by the accd. and the same was not enchased as the accd. had written a letter to the Bank asking to stop payment to its holder. Since the ext-1 bears the name of the complainant as payee, therefore, it is to be presumed, unless the contrary is proved, that the holder of the cheque is the complainant. The accd. has failed to prove by way of cogent evidence that ext-1 and ext-B were given to Rajendra Dhandania as blank cheques or even if he had given it to Rajendra Dhandania then how the complainant got hold of it. Though D.W.3 has deposed in favour of the accd. but he being an employee of the accd. doing manual labour for the accd. and having no knowledge of the accused''s business transactions, he not only appears be an interested witness but also incapable of throwing light in this matter. Thus, this Court is to presume that the accd. had indeed issued ext-1 to the complainant.

Next, we find from the evidence of D.W.1 that he did not lodge any complaint against the complainant when he tried to encash the cheque from the bank and he also did not serve any letter or notice upon the complainant or anyone when he heard that the cheque had been dishonoured. It is evident from ext-2, ext-2(a) and 2(b) that the accd. was aware that the complainant had presented ext-1 for encashment. When any person to whom you have never issued a cheque sends a lawyer''s notice to that effect then it would be most natural thing to reply back or lodge a complaint or he could have sent to cheque in question for handwriting expert to prove his contention but the accd. preferred to remain silent, moreover, he tried to stop payment to the complainant. The conduct of the accd. not only points towards his culpability but also towards his liability."

It also emerges from the discussion in the body of the judgment (supra) that the petitioner and the OP1-complainant maintained business relations with each other.

Therefore, in the backdrop of the above discussion this Court finds no reason to interfere with judgment and order of the Ld. Appellate Court dated 13th April, 2011.

CRR 1495 of 2011 stands accordingly dismissed.

Urgent certified photocopies of this judgement, if applied for, be given to the learned advocates for the parties upon compliance of all formalities.