Aacus Educations Limited And ... vs The State Of West Bengal And ...
2023 Latest Caselaw 2384 Cal

April 10, 2023

Court No.42 s.biswas CRR 2864 of 2022

In re.: An application under Section 482 read with 401 of the Code of Criminal Procedure, 1973.

Aacus Educations Limited and others Vs.

The State of West Bengal and another

Mr. Amarta Ghose, Ms. Rituparna De Ghose, Mr. Siddhartha Paul, Mr. Soumyadeep Ghosh, Ms. Poulami Chattopadhyay, Advocates ... for the petitioners Mr. Ranjit Jaiswal, Mr. Parthasarathi Chakraborty, Advocates ... for the de-facto complainant

The petitioner was convicted and sentenced to pay

compensation, in default simple imprisonment for a period of

three months for committing offence under Section 138 of the

Negotiable Instruments Act. The said judgment passed by the

Trial Court was affirmed by the court of appeal.

The convict has approached this Court assailing

concurrent finding of both the Courts below on the following

grounds:

(a) That Section 138 of the N.I. Act stipulates issuance of

cheque by the drawer,

(b) Presentation of cheque with the bank of the holder of

the cheque in due course in his bank within a

statutory period of time,

(c) Dishonour of cheque,

(d) Issuance of demand notice within statutory period of

time to enable the defaulter to make payment of the

cheque amount,

(e) Failure on the part of the drawer of the cheque to

make payment of the sum within the said statutory

period of time,

(f) Only then cause of action to file a complaint under

Section 138 of the N.I. Act arises.

It is pointed out that by the learned advocate for the

petitioner showing the evidence of the authorized

representative of the bank that the cheque in question was

never tendered to the bank for encashment. Moreover, the

cheque in question does not bear any official seal of the bank

after its presentation by the opposite party. Thirdly, no

amount was deducted from the account of the petitioners

after the cheque allegedly being dishonoured.

It is urged by the learned advocate for the petitioner

that both the Trial Court as well as Court of Appeal failed to

consider such aspect of the matter. It is also urged that when

the cheque was not presented and dishonoured, criminal

liability on the petitioner does not exist.

The instant revision be admitted.

As the opposite party has already entered appearance,

the petitioner is directed to service a copy of the application in

course of the day. The opposite party is at liberty to use

affidavit-in-opposition within three weeks from the date of

this order.

In the meantime the operation of the impugned order

of conviction and sentence be stayed till two weeks after

vacation.

The matter be listed under the heading "Contested

Application" in the Monthly List of June, 2023.

Lower Court Record be called for.

(Bibek Chaudhuri, J.)