Sri Pradip Kumar Basu vs City Link Commotrade Pvt. Ltd. & ...
2022 Latest Caselaw 499 Cal

11.02.2022
S/L No.20
KS/BM                                 (Via Video Conference)
                                       C.R.A. 398 of 2001

                                    Sri Pradip Kumar Basu
                                              -Vs.-
                             City Link Commotrade Pvt. Ltd. & Anr.




                   The appeal is listed today for hearing. On call none appears

             for the appellant/complainant as well as for respondent no.2.

The Registry by order dated 16.09.2021, was directed to

issue Administrative Notice upon the complainant/appellant as

well as accused/opposite party. As per report dated 11.01.2022

notice has been served upon Mr. Pradip Kumar Basu, the

appellant but notice could not be served upon respondent

no.1/M/s. City Link Commotrade Private Limited and respondent

no.2 Mr. Rajesh Somani. The report submitted by police disclose

that the respondents could not be traced out at the given address.

Since both the parties are absent and did not appear before the

Court, the appeal is taken up for consideration and disposal by

exercise of powers vested in this Court under Section 386 of the

Code of Criminal Procedure.

Opportunity was given to the appellant and the respondents

to appear and make their submissions but they have failed to do

so.

The appellant, who is the complainant in C. Case No.518 of

1997 under Section 138/141 of the Negotiable Instruments Act has

preferred this appeal under Section 378(4) of the Code of Criminal

Procedure, assailing the order dated 2.5.2001 passed by the

Metropolitan Magistrate, 8th Court, Calcutta wherein the

respondents company and respondent no.2, its Director were

acquitted from the offence under Sections 138/141 of Negotiable

Instruments Act.

Perused the impugned judgement dated 2.5.2001 passed in

case no.C/518 of 1997 and the evidence on record.

In brief, the facts of the case is that the

complainant/appellant Pradip Kumar Basu is the Executive

Director of M/s. Rollsprint Packaging Limited, a group of

Companies which includes M/s. City Link Commotrade Pvt. Ltd.

For service rendered by the complainant from 15.11.1996 to

12.5.1997, the group Company, respondent no.1 herein, issued two

cheques through accused no.2/respondent no.2 of the amount of

Rs.55,000/- each, bearing cheque No.041435 dated 20.6.1997 and

cheque 041436 dated 20.07.1997 in favour of the

appellant/complainant, drawn on State Bank of Indore, Brabourne

Road Branch, Calcutta as part payment of dues. The cheques were

presented with the drawee Bank, being Allahabad Bank, Beadon

Street Branch, Calcutta on 21.07.1997 for encashment but the

cheques were dishonoured and returned on 23.07.1997 with

remark "insufficient fund". A return memo dated 22.07.1997

accompanied the cheques. Demand notice was issued by the

complainant on 1.08.1997 through his lawyer demanding payment

of the cheque amounts within 15 days. The notice was received on

1.8.1997 but no payment was made to the complainant/appellant.

A case was filed on 11.9.1997, within one month from the date of

cause of action. The accused person was summoned and the

accused/respondent no.2 on examination under Section 251 of the

Code of Criminal Procedure pleaded not guilty to the accusation

under Sections 138/141 of the Negotiable Instruments Act.

In support of his case the complainant examined himself as

PW-1. One Gautam Banerjee, the Manager of Allahabd Bank was

examined as PW-2, Satyajit Sarvadhikary, a staff of the State Bank

of Indore, Brabourne Road was examined as PW-3. Documents

have been marked as exhibit 1 to exhibit-12 for the complaint

which includes documents, like demand notice, cheques,

dishonour memo and certified copy of ledger of bank.

Accused no.2 was examined under Section 313 of the Code

of Criminal Procedure who admitted that cheques were

dishonoured and declared himself as innocent. One Tarun Kumar

Chowdhury, legal officer of accused no.1, was examined as DW-1.

After considering the evidence and materials on record,

learned Magistrate observed that there was no dispute regarding

issuance of cheques by the Rajesh Somani, the Director of M/s.

City Link Commotrade Pvt. Ltd. but complainant could not prove

the liability of the accused company and person towards him by

not being able to establish the relation between the complainant's

company M/s. Rollsprint Ltd. and M/s. City Link Commotrade

Pvt. Ltd.

This appeal against acquittal has been filed on the grounds

inter alia, that the Learned Metropolitan Magistrate, 8 th Court,

Calcutta has failed to appreciate the evidence in its proper

perspective and has illegally and perversely held that the

company has failed to prove the existing liability of the accused

company and the connection between M/s. Rollsprint Ltd. and

M/s. City Link Commotrade Pvt. Ltd.

Furthermore, the accused person admitted during his

examination under Section 313 of the Code of Criminal Procedure

that the cheques issued by him have been dishonoured and the

accused failed to rebut the presumption raised against him under

Section 139 of the Negotiable Instruments Act. Therefore, Learned

Magistrate by misplacing the burden of proof acted perversely and

illegally in holding that the complainant failed to establish the

guilt of the accused and in acquitting them.

It is urged that the impugned judgment is liable to be set

aside and accused/opposite party should be held guilty of the

offence under Section 138/141 of the Negotiable Instruments Act

and sentenced and directed to compensate the appellant.

It appears to me that the learned Magistrate had failed to

appreciate the evidence and the presumption under Section 139 of

the Negotiable Instruments Act, that the onus lies upon the

accused person, who issued the cheques. Therefore, a person who

has undisputedly issued the cheques cannot shirk the

responsibility when they are dishonoured unless he proves that

such cheques were not for discharge of debt or other liability in

whole or in part in favour of the payee. The Ld. Magistrate has

misplaced the burden of proof.

In my considered view the complaint case has been lodged

within the statutory period laid down in Section 142(b) of the

Negotiable Instruments Act. As such, the decision arrived at,

acquitting the appellant is not legally tenable. The impugned

judgement and order is therefore, set aside. The case is remitted to

the 8th Court of Metropolitan Magistrate, Calcutta for summoning

the complainant and the accused respondent and after giving them

an opportunity of hearing pass a fresh judgement in accordance

with law on the evidence already on record, preferably within

three months from receipt of this order.

The appeal is accordingly allowed and disposed of.

All pending connected applications, if any, are consequently

disposed of.

Let the LCR along with copy of this judgement be sent

down to the 8th Court of Metropolitan Magistrate for information

and compliance.

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

be supplied to the parties on compliance of necessary formalities.

(Ananda Kumar Mukherjee, J.)