Deb Prasanna Sinha vs Debabrata Chowdhury

Siddhartha Chattopadhyay, J.—Being unsuccessful in two successive occasions the present petitioner has filed this revisional application challenging the impugned order dated 20th December, 2003 passed by the learned 2nd Fast Track Court, Bichar Bhavan at Calcutta.

The grievance of the petitioner as ventilated in the revisional application is such that the present opposite party had purchased two plots of land, one jointly from Smt. Anandamoni Mukherjee and Smt. Aparna Roy and another jointly from Sri Prafulla Kumar Ghosh and Amulya Ratan Ghosh, by two separate sale deeds at a consideration money of Rs.8,38,700/-. Before purchasing the same, the present opposite party obtained relevant papers and documents, inspected the same and after due search had got the said deeds of conveyance registered. The opposite party also got his name mutated in respect of the aforesaid plots. The petitioner contended that there were some mistakes in regard to the description of the property and the plot numbers and for which necessary corrections were made in the deeds subsequently. It is the specific case of the petitioner, that the opposite party had forcibly obtained eight cheques from him and presented the same to his banker for encashment but the cheques were dishonoured on presentation and for which a criminal proceeding has been initiated against him being No. C/11411 of 2007.

The concerned criminal court had taken deposition of the complainant, and the accused, considered the relevant documents, bank intimation regarding dishonour of cheques and thereafter had convicted him to suffer imprisonment for three months and also to pay compensation to the tune of Rs.13,50,000/-

Being dissatisfied with the said finding of the learned Trial Court he had preferred the revisional application before the learned Sessions Judge and learned Sessions Judge has also affirmed the order passed by the Trial Court and directed him to serve out the sentence and also to pay compensation as fixed by the learned Trial Court.

By filing this revisional application the petitioner wanted to say that there was no debt and as a result the provision under Section 138 of Negotiable Instrument Act is not attracted. In the revisional application he wanted to say that the present opposite party had forcibly procured eight cheques of different dates from him. It appears from the evidence that he did not file any criminal case when such cheques were obtained allegedly by force by the present opposite party. He has also given a clarification that since the opposite party is a politically influential person so he could not file any criminal case against the present opposite party. Curiously enough, it appears from the materials on record that he has filed a civil suit before the civil court at Bolpur and prayed for injunction, which was turned down by the said civil court. Now the question peeps in my mind, that if he could go to civil court for persuasion of a litigation, what prevented him from filing any criminal case regarding such alleged act of the opposite party? It seems to me that the petitioner wanted to take a hot and cold breathe at the same time.

Admittedly, the cheques were presented before the concerned bank and those were dishonoured. In this Act there is a presumption that the person who issued the cheque is under a liability/debt to pay the same unless rebutted. There is no such evidence that the present petitioner had been able to rebut the said presumption.

The learned Trial Court as well as learned First Appellate Court has scrutinized the evidence adduced by the parties very meticulously and has come to a concurrent finding. Normally, High Court in exercising its jurisdiction under Article 227 should not go into appreciation of evidence unless there is a miscarriage of justice. In spite of that on perusal of the evidence recorded by the Trial Court and which had been appreciated by the first learned Trial Court, I find that there is no miscarriage of justice. On the contrary, both the courts below had appreciated the evidence in its proper perspectives.

Learned Counsel appearing on behalf of the petitioner, has mainly challenged that a composite notice cannot be sent upon the drawer because several cause of actions are there and the same cannot be clubbed together. According to him, separate cases were required to be filed for separate cause of action. As against this learned Counsel appearing on behalf of the opposite party referred to a decision reported in (2016) 3 SCC Page 1, wherein the Hon''ble Apex Court held if cheques were issued in relation to a continuing contract or business where no claim is made on the date of issuance nor any determinate amount payable to the holder, one could perhaps argue that the cheques cannot be presented or prosecution launched on a unilateral claim of any debt or liability. The Hon''ble Apex Court further held "the present is, however, a case where the existence of the debt, which liability was never in dispute. It was on the contrary acknowledged and a promise was made to liquidate the same even within one month. Failure on the part of the debtor to do so could lead to only one result viz. presentation of the cheques for payment and in the event of dishonour, launched of prosecution as has indeed happened in the case in hand." It is perhaps needless to say that in Section 138 of the Negotiable Instrument Act there is a rider to presumption. It would be profitable for us to refer to the said section which runs thus :

(i) The cheque should be drawn by a person on an account maintained by him with a banker for payment of any amount of money to another person from out of "that account".

(ii) The cheque should be returned by the bank unpaid either because:

a). The amount of money standing to the credit of that account is insufficient to honour the cheque; or

b). It exceeds the amount arrange to be paid from that account by a person with the bank.

(iii) In such a situation, such person (drawer of cheque) shall be deemed to have committed an offence.

Therefore it was the duty of the present petitioner to show that there was no liability or debt on his part.

Learned Counsel appearing on behalf of the petitioner also argued that "closure of account" and "insufficient fund" cannot be equated with each other. We may safely rely on the decision reported in (1999) 4 SCC 253, wherein Hon''ble Apex Court held "the question is, in a case where a cheque is returned by the bank unpaid on the ground that the "account is closed", would it mean that the cheque is returned as unpaid on the ground that "the amount of money standing to the credit of that account is insufficient to honour the cheque"? In our view, the answer would obviously be in the affirmative because the cheque is dishonoured as the amount of money standing to the credit of "that account" was "nil" at the relevant time apart from it being closed. Closure of the account would be an eventuality after the entire amount in the account is withdrawn. It means that there was no amount in the credit of "that account" on the relevant date when the cheque was presented for honouring the same. The expression "the amount of money standing to the credit of that account is insufficient to honour the cheque" is a genus of which the expression "that account being closed" is specie. After issuing the cheque drawn on an account maintained, a person, if he closes "that account" apart from the fact that it may amount to another offence, it would certainly be an offence under Section 138 as there was insufficient or no fund to honour the cheque in "that account". Further, the cheque is to be drawn by a person for payment of any amount of money due to him "on an account maintained by him" with a banker and only on "that account" the cheque should be drawn. This would be clear by reading the section along with provisos (a), (b) and (c)."

Therefore, after going through the materials on record and the finding of the learned First Appellate Court as well as learned Trial Court, I do not find any reason to take a different view. Lastly learned Counsel appearing on behalf of the petitioner contended that conviction in regard to imprisonment for three months may be relaxed. Considering the circumstances, I am of the view that the petitioner be directed to pay compensation to the tune of Rs.13,50,000/- within fifteen days from this date in default to suffer sentence of imprisonment for four months. The order of the learned First Appellate Court is modified to this extent.

Let a copy of this judgment and the L.C.R. be sent to the learned Court below for information and taking necessary action in accordance with law.

Urgent certified photocopy of this Judgment and order, if applied for, be supplied to the parties upon compliance with all requisite formalities.