Calcutta High Court (Appellete Side)
Aloke Kumar Das vs Sudarshan Paper & Board Private ... on 25 March, 2022
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IN THE HIGH COURT AT CALCUTTA
(Criminal Revisional Jurisdiction)
Appellate Side
Present:
The Hon'ble Justice Bibhas Ranjan De
C.R.R 1513 of 2021
With
Aloke kumar Das
Vs
Sudarshan Paper & Board Private Ltd
For the Petitioner : Mr. Krishna Das Poddar
For the opposite party : Mr. Krishnendu Bhattacharya
Mr. Avishek guha
Heard on : March 10, 2022
Judgment on : March 25, 2022
Bibhas Ranjan De, J.:-
1. I am dealing with an application under Section 482 of the Code of
Criminal procedure (for shot 'Cr.P.C') for quashing of the proceeding
being no. CS 495 of 2020 under Section 138 of the Negotiable Instrument
Act, 1881(for short 'N.I. Act') pending before the Ld. 3rd Metropolitan
Magistrate, Calcutta.
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2. Petitioner assailed the proceeding stating inter alia that
there was commercial transaction between the parties and there was
pending unpaid bills from the petitioner to the opposite party for supply of
paper to the petitioner for manufacturing paper diary. It is alleged that
petitioner issued post dated cheques against the goods received but
payments were made by cash and this was the practice. It is further alleged
that opposite party /complainant had no authority to present the cheques
including blank dated cheques to his banker without informing the
petitioner and therefore petitioner had no obligation to make arrangement
for payment. However, the case of the petitioner that every time payment
was made by case though cheques were issued in favour of the complainant
by way of security. So, cheques in connection of this case were issued
against surety but not against debt or other liabilities enforceable within the
meaning of provision of section 139 of the N.I. Act.
3. Mr. Krishna Das Poddar, Ld. Advocate. Appearing on behalf
of the petitioner refers to a case of M.S. Narayana Menon @ Mani Vs state
of Kerala and anr. (AIR 2006 Supreme Court 3366) and submitted that
issuance undated cheques cannot be considered as a cheque issued in
discharge of debt and liability under Section 139 of the N.I. Act. In fact Mr.
Poddar, emphasised on only point of 'undated cheque' and tired to make
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this Court understand that proceeding under the N.I. Act cannot be initiated
in relation to any undated cheques.
4. In Mani (supra) Hon'ble Apex Court actually dealt with a
case after completion of trial and mainly focused on the issued of
'presumption' embed in section 139 of the N.I. Act. Facts
of that case is not
at all identical with that of ours. Hon'ble Apex Court dealt with a case where
alleged cheque issued was not of the hand writing of the appellant and that
apart statement of accounts pertaining to settlement did not reflect the
correct accounts of the transactions and entries made therein were false.
5. Per contra, Mr. Krishendu Bhattacharya, Ld. Advocate.
Appearing on behalf of the opposite party relied on a case of Womb
Laboratories PVT. LTD. Vs Vijay Ahuja (AIR On line 2019 SC 2228) and
submitted that even the cheques in question were issued by way of security
would not extricate accused from discharge of liability arising from such
cheques.
6. In Womb Laboratories PVT. LTD. (supra) Hon'ble Apex
Court made an observation as follows:
" 5. In our opinion, the High Court has muddled
the entire issue. The averment in the complaint does
indicate that the signed cheques were handed over
by the accused to the complainant. The cheques
were given by way of security, is a matter of
defence. Further, it was not for the discharge of any
debt or any liability is also a matter of defence. The
relevant facts to countenance the defence will have
to be proved-that such security could not be threaten
as debt or other liability of the accused. That would
be a triable issued. We say so because, handing
over of the cheques by way of security per se would
not extricate the accused from the discharge of
liability arising from such cheques."
7. That apart in Sripati Singh Vs State of Jharkhand (2001
SCC online SC 1002) it was decided that :
"When a cheque is issued even though as
'security' the consequence flowing therefrom is
also known to the drawer of the cheque and in
the circumstance stated above if the cheque is
presented and dishonoured, the holder of the
cheque/drawee would have the option of
initiating the civil proceedings for recovery or the
criminal proceedings for punishment in the fact
situation, but in any event, it is not for the
drawer of the cheque to dictate terms with
regard to the nature of litigation."
8. In Our case, it is not denied that cheques were not issued
with the signature of the petitioner in favour of the opposite party. The
presumption as envisaged under Section 139 is a statutory and mandatory
presumption and not the discretionary presumption. The Courts has to
presume and proceed on the basis of this presumption unless it is dislodged
by the accused (here petitioner) on the strength leading cogent and
convincing evidence in support of his claim. It is for the accused (here
petitioner) to rebut the presumption contain in Section 139 of the Act.
9. Therefore, relying on the ratio of both reported decision
cited on behalf of the parties to this revisional petition I have no doubt that
the issued raised here is a matter of evidence in terms of Section 139 of the
N.I. Act.
10. In the aforesaid view of the matter, I find no reason to
stand in the way of proceeding by exercising power under Section 482
Cr.P.C.
11. Thus, the instant revisional application stand dismissed.
12. The copy of this order be communicated to the Ld. 3rd
Metropolitan Magistrate, Calcutta for compliance, at once, by the
department.
13. All parties to this revisional application shall act on the
server copy of this order downloaded from the official website of this
Court.
14. Urgent Photostat certified copy of this order, if applied for,
be supplied to the parties upon compliance with all requisite formalities.
[BIBHAS RANJAN DE, J.]
