Solar Designs Private Limited & ... vs The State Of West Bengal & Anr
2021 Latest Caselaw 2163 Cal

Form No. J(2)

IN THE HIGH COURT AT CALCUTTA CRIMINAL REVISIONAL JURISDICTION

Present:

The Hon'ble Justice Jay Sengupta

C.R.R. 246 of 2021

Solar Designs Private Limited & Ors.

-vs-

The State of West Bengal & Anr.

For the Petitioner : Mr. Kumarjyoti Tewari

For the Opposite Party no.2: Mr. Amar Dudhwewala, Mr. Karan Dudhwewala,

Heard on: 19.03.2021

Judgment on: 19.03.2021

Jay Sengupta, J.:

This is an application praying for quashing of a

proceeding in a complaint case no. CS/12400/2020 under

Sections 138 and 141 of the N.I. Act presently pending before

the Learned 14th Metropolitan Magistrate, Calcutta.

Learned counsel for the petitioner submits as follows. The

cheque in question was given by the petitioners to the

complainant in 2012 as a co-lateral security during their

business transactions. In 2014 the business transactions were

closed. The petitioner relies on a copy of a letter given from the

petitioner's side admitting that the cheque was given by the

accused as collateral security, but containing signature of the

complainant. Reliance is also placed on the certificate issued

by a bank that the cheque in question was given from a

cheque book, which was issued to the petitioner in 2012. As

such, no prima facie case is made out as would be evident

from a plain reading of the petition of complaint. The

consideration behind the cheque has not been proved at all.

Any further continuation of the impugned proceeding shall be

an abuse of the process of Court. Reliance is placed on the

decision in the case of Indus Airways Private Limited & Ors. -

vs- Magnum Aviation Private Limited & Anr., reported in

(2014) 12 SCC 539 and it is submitted that it is the obligatory

on the part of the complainant to make out a case that there

was a consideration behind the issuance of the cheques.

Learned counsel for the private opposite party submits as

follows. The documents relied on by the petitioners, namely,

the purported letter given by the accused/petitioner, but

containing signature of the complainant and the purported

certificate issued by the bank are documents that are required

to be proved during trial. The petition of complaint makes out

a prima facie case and it is for the accused to rebut the

presumption under Section 139 of the N.I. Act. Reliance is

placed on the decision in the case of HMT Watches Limited -

vs- M.A. Abida & Anr., reported in (2015) 11 SCC 776 and it is

submitted that whether the cheques were given as a security

or not or whether there was any outstanding liability or not is

a question of fact that could have been determined only during

trial.

I have heard the submissions of the learned counsels

appearing on behalf of the petitioner and the opposite party

and have perused the revision petition.

In State of Orissa -vs- Devendra Nath Padhi, reported in

2005 SCC (Cri) 415, the Hon'ble Apex Court held that the

private documents cannot be looked into before trial unless

such documents are of sterling quality and unimpeachable

character. The documents that are referred by the petitioner

for seeking quashing of the proceeding, namely, the letter

issued by the accused, but signed by the complainant,

admitting that the cheque was issued as a co-lateral security

and a certificate issued by the private bank are, quite

indubitably, not of sterling quality and unimpeachable

character. These are documents that have to be proved

essentially during trial.

The decision relied upon by the petitioner in Indus

Airways Private Ltd. and Ors.(Supra) is distinguishable from

the present facts inasmuch as in that case there were certain

undisputed facts that the supplier received a letter from the

purchaser canceling the purchase orders and requesting the

supplier to return the private cheques. The facts as not so

here.

It was laid down by the Hon'ble Apex Court in the case of

HMT Watches Limited (Supra) that whether the cheques were

given as security or not or there were outstanding liability is a

question of fact that can be determined only by the trial court.

Therefore, the contention of the petitioner that the

impugned proceeding is not maintainable in view of the two

documents as referred to above cannot be entertained at this

stage.

Moreover, from a plain reading of a petition of complaint,

a prima facie the case appears to have been made out under

Sections 138 and 141 of the N.I. Act. However, it will be open

only to the accused to rebut the presumption under Section

139 of the N.I. Act during trial.

In view of the above, I do not find any merit in the present

application. Accordingly, the revisional application is

dismissed.

However, there shall be no order as to costs.

Urgent photostat certified copy of the order, if applied for,

be given to the parties, upon usual undertakings.

(Jay Sengupta, J.)

10/Ct.32 rkd