M/S. Kalpataru Mobile & Ors vs The State Of West Bengal & Anr
2023 Latest Caselaw 4071 Cal

                  IN THE HIGH COURT AT CALCUTTA

                     (Criminal Revisional Jurisdiction)

                              Appellate Side

Present:

The Hon'ble Justice Shampa Dutt (Paul)

                              CRR 290 of 2019

                        M/s. Kalpataru Mobile & Ors.

                                      Vs.
                        The State of West Bengal & Anr.

For the Petitioner                   : Mr. Ranjan Kali,
                                       Ms. Mili Saha,
                                       Mr. Mitul Chakraborty.

For the opposite party no.2         : Mr. Mrityunjoy Chatterjee,
                                      Mr. Sattik Rout.

For the State                       : Mr. Binay Panda,
                                      Ms. Puspita Saha.

Heard on                            : 14.06.2023

Judgment on                          : 04.07.2023



Shampa Dutt (Paul), J.:

1.    The present revision has been preferred against an order dated

01.10.2018 passed by the Additional District and Session Judge, Fast Track

Court at Calcutta, in connection with Criminal Appeal No.01 of 2018 arising

out of the Judgment dated 17.11.2017 passed by the learned 14th

Metropolitan Magistrate Court at Calcutta in connection with C/64724/09

(M/s. Jalan Info System Private Limited vs. M/s. Kalpataru Mobile & Ors.).
                                       2




2.    The petitioner's case is that, the learned Additional District and

Session Judge, Fast Track court at Calcutta has affirmed the sentence

passed by the learned 14th Metropolitan Magistrate at Calcutta by passing a

sentence of   simple imprisonment for 6           (six) months to both the

petitioners/accused persons and further sentenced the petitioners/accused

persons to pay compensation of an amount of Rs.8,79,748/- in equal

proportion payable by both the petitioners/accused persons to the

complainant within 1 (one) month from the date of the order in default

simple   imprisonment    for   12   (twelve)     months   in   respect   of   the

petitioners/accused persons no. 2 & 3 and order of attachment in respect

of the petitioner no.1, company.

3.    The specific case made out in the complaint under Section 138 of the

N.I. Act is that the respondent/complainant no.2 was the authorised

distributors of the Nokia Brand mobile phone and the petitioner/ accused

person no.1 is engaged in the business of buying and selling of the mobile

phones of different companies. The petitioner/accused person nos.2 and 3

are the Directors of the petitioner/accused person no.1 and allegedly placed

orders with the respondent/complainant no.2 for supply of Nokia mobile

phone on credit. Subsequent thereto against the supply of handsets the

petitioners/accused persons have issued 2 (two) cheques dated 13.10.2009

amounting to Rs.5,00,000/- and Rs.4,39,874/- aggregating to

Rs.9,39,974/- and both the cheques were allegedly drawn on Oriental Bank

of Commerce, Kolkata Service branch towards the payment of the

outstanding dues to the respondent/complainant no.2 for sale of mobile

handset to the petitioner/accused person no.1 company. The said cheques

upon presentation were dishonoured on the ground of insufficient fund

which resulted in causing a statutory notice under Section 138 of the N.I.

Act by the respondent/complainant no.2 upon the petitioners/accused

persons and thereafter by reason of the failure on the part of the

petitioners/accused persons to pay the said due amount, the complaint has

been filed by the respondent/complainant no.2.

4. It is stated that the Trial Court and the Session Court, while arriving

at a common finding failed to appreciate that the said cheques were giving

as a security and there was no debt payable by the petitioners/accused

persons as the petitioners/accused persons have already paid the entire

dues of the respondents/complainants against the supply of the mobile set

as would be evident from the statement of accounts maintained by the

petitioners/accused persons.

5. The petitioners/accused persons state that the

respondent/complainant no.2 has failed to prove that there is a debt that

the petitioners/accused persons are liable to pay to the

respondent/complainant no.2 in due discharge of any existing debt.

6. That the 2 (two) cheques were presented to the service branch of OBC

Bank and not presented to the drawer bank for encashment i.e. OBC Bank,

Burdwan Branch, hence whether sufficient funds was available in the

drawer bank could not be ascertained as the cheques were presented to the

service branch where the petitioners/accused persons have got no account.

7. Thus the respondents/complainants failed to discharge the burden of

proving the debt and both the courts erroneously arrived at a conclusion

that under Section 139 of the N.I. Act the petitioners/accused persons have

failed to rebut the presumption of existence of a debt due to issuance of the

cheques.

8. Mr. Ranjan Kali, learned counsel for the petitioners has submitted

that both the courts have passed the sentence without appreciating the

evidence adduced by the petitioners/accused persons in support of their

case in proper perspective.

9. That both the courts erred in appreciating the fact that the

respondents/complainants have failed to discharge the burden proving the

existence of the debt and accordingly both the courts ought not to have

passed the judgment and sentence against the petitioners/accused persons.

10. That both the courts have failed to appreciate that both the cheques

had been given as a security against the transactions in respect of which the

respondents/complainants have already received payment from the

petitioners/accused persons.

11. That both the courts ought to have appreciated the fact that the

cheques have been presented before the service branch and not before the

drawer bank for encashment in gross violation of the statutory rules.

12. That both the courts ought to have appreciated the fact that it is the

specific case of the petitioners/accused persons that they have got no

account in the service branch of OBC and they have only got an account in

the Burdwan branch of OBC where the cheques were not presented.

13. That there exists no legal debt payable by the petitioners/accused

persons to the respondents/complainants.

14. That both the judgment and sentence passed by the learned courts

are otherwise bad and not sustainable in the eye of law and thus liable to be

set aside.

15. Mr. Mrityunjoy Chatterjee learned counsel for the opposite party

no.2 has submitted that the learned Magistrate and the learned Sessions

Court have passed the orders which are in accordance with law and as such

the revision is liable to be dismissed.

16. Supplementary affidavit filed by the petitioners is in support of the

materials already on record. Notes of argument has been submitted by the

petitioners relying upon the following judgments:-

a) Shri Ishar Alloy Steels Ltd. vs. Jayaswals Neco Ltd. reported in

(2001) 3 SCC 609 wherein it has been held that :-

"9. The use of the words "a bank" and "the bank" in the section is an indicator of the intention of the legislature. The former is an indirect (sic indefinite) article and the latter is prefixed by a direct (sic defiite) article. If the legislature intended to have the same meaning for "a bank" and "the bank", there was no cause or occasion for mentioning it distinctly and differently by using two different articles. It is worth noticing that the word "banker" in Section 3 of the Act is prefixed by the indefinite article "a" and the word "bank" where the cheque is intended to be presented under Section 138 is prefixed by the definite article "the". The same section permits a person to issue a cheque on an account maintained by him with "a bank" and makes him liable for criminal prosecution if it is returned by "the bank" unpaid. The payment of the cheque is contemplated by the "the bank" meaning thereby where the person issuing the cheque has an account............"

b) M/s. Merck Ltd. & Anr. Vs. Radha Nath Nandi in CRR 3950 of

2016 dated 25.08.2017 of this court.

17. In the present case, the Metropolitan Magistrate, 14th Court,

Calcutta convicted the petitioners and sentenced them to suffer simple

imprisonment for six months and pay compensation of Rs.8,79,748/- in

equal proportion in default to suffer simple imprisonment for 12 months in

respect of petitioner nos.2 and 3 and order of attachment in respect of

accused no.1.

18. In appeal the Sessions court modified the sentence as follows:-

"The accused persons nos.2 and 3 namely Debabrata Sai and Sourav Sai are hereby sentenced to suffer simple S.I. for one month and to pay compensation amount of Rs.8,79,748/- in equal proportion to the complainant within one month from the date of receipt of the order by the learned Trial Judge I/D S.I for 12 months in respect of accused nos.2 and 3 and order of attachment against the accused no.1."

19. The contention of the petitioners before this Court is that the cheque

in question was given as a security and not in discharge of any debt or

liability.

20. It is seen that the Magistrate and Sessions Court's findings in that

respect is in accordance with law. The accuseds did not produce any

materials or evidence sufficient to rebut the said presumption.

21. The next contention is that the cheque was presented to the service

branch of OBC Bank and not presented to the drawer bank for encashment

i.e. OBC Bank, Burdwan Branch, hence whether sufficient funds were

available in the drawer bank could not be ascertained as the cheques were

presented before the service branch where the petitioners/accused persons

have no account. Hence, the intimation of "insufficient funds" is not in

accordance with the banking norms.

22. Exhibit 3 is the Cheque issued in favour of the opposite party no.2,

drawn on Oriental Bank of Commerce. The said cheque bears the

instructions PAYABLE AT ALL CBS BRANCHES.

23. Exhibit 4 is the Memo of dishonour of cheque, issued by the Oriental

Bank of Commerce, Kolkata, Service Branch, through the complainant's

bank being Axis Bank with the endorsement 'funds insufficient'.

24. Thus, the contention of the petitioners that the cheque should

have been presented before the Burdwan branch, where they have an

account has no substance. Admittedly, the cheque was presented to

'the Bank' of the petitioner, that is ORIENTAL BANK OF COMMERCE,

service Branch by the Bank (herein Axis Bank) where the complainant

deposited the cheque, as he has an account. Oriental Bank of

Commerce, service branch did not say that account does not exist. The

Memo clearly says 'funds insufficient'. The said branch has access to all

accounts with their Bank centrally as the cheque clearly says, payable

at all CBS branches.

25. The judgments relied upon also do not support the petitioners case.

26. Accordingly, considering the materials on record, the judgment and

order under revision is modified to the extent that the substantive sentence

to suffer simple S.I for one month is set aside. Rest of the sentence is

affirmed. The compensation as directed is to be paid within one month

from date of this order in default the petitioners no.2 and 3 shall

undergo the sentence in default of payment of compensation as

directed by the Session Court.

27. The revisional application being CRR 290 of 2019 is thus

disposed of.

28. No order as to costs.

29. All connected applications stand disposed of.

30. Interim order, if any, stands vacated.

31. Copy of this judgment be sent to the learned Trial Court forthwith for

necessary compliance.

32. Urgent certified website copy of this judgment, if applied for, be

supplied expeditiously after complying with all, necessary legal formalities.

(Shampa Dutt (Paul), J.)