Calcutta High Court: In a revision was filed against an order and judgment dated 19-02-2019, passed by the Additional District & Sessions Judge modifying the judgment dated 07-03-2015, passed by the Judicial Magistrate at Barrackpore in a criminal case under Section 138 of the Negotiable Instruments Act, 1881 (NI Act), directed to pay compensation of Rs. 2,00,000/- instead of Rs. 2,25,000/- to the complainant/respondent, a single-judge bench comprising of Shampa Dutt (Paul),* J., held that the “judgment and order under revision and the judgment of the Trial Court being not in accordance with law are liable to be set aside for ends of justice and to prevent abuse of process of law.”
Brief Facts
The complainant-opposite party 1, alleged that the petitioner borrowed Rs. 1.5 lakhs on 18-04-2003 and issued a cheque on 01-08-2007, dishonored due to insufficient funds. The complainant deposited the cheque again on 02-01-2008, only to discover that the petitioner had closed his account. Legal notices were sent, and the case was filed under Section 138 of the NI Act. The Trial Court, on 07-03-2015, convicted the petitioner and ordered compensation of Rs. 2,25,000/- along with six months’ simple imprisonment. The Appellate Court modified the compensation to Rs. 2,00,000/- on 19.02.2019 to be paid to the complainant/respondent within four months, with the consequence of facing simple imprisonment for four months in default, leading to the present revision.
Contentions
The petitioner contested the validity of the notice mandatory under Section 138 NI Act, claiming it was not proved before the Trial or Appellate Court. The petitioner asserted that he did not issue the cheque, and his defense was that the account related to the cheque was closed in 2003-2004. Citing Premchand v. State of Maharashtra, (2023) 5 SCC 522, the petitioner argued that a statement under Section 313, CrPC cannot be the sole basis for conviction and must be considered in conjunction with other evidence.
Court’s Decision
The Court observed that Section 138 NI Act mandates a written notice for dishonored cheques and the absence of the notice in court records questions the maintainability of the case. The Court stated that the notice required under Section 138 was not proved before the Court, rendering the foundation of the case wrong and not maintainable. The Court noted that the sole material for the conviction was the petitioner’s admission during examination under Section 313 CrPC, as no evidence of notice was brought forth by the complainant.
“…the statement/admission under Section 313 is the (sole) only material upon which the conviction in this case is based, as there is no evidence brought on record by the complainant which proves the service of Notice as per the provision under Section 138 N.I. Act, and therefore, no conviction can be premised solely on the basis of the answers given by the accused during his examination under Section 313 Cr.P.C.”
The Court allowed criminal revision, setting aside the judgments of the trial court and the appellate court. The Court acquitted the petitioner of the charge under Section 138 of the NI Act and discharged from his bail bond. All connected applications were disposed of, and any interim orders were vacated.
[Sarit Kumar Bose v. Rita Mallick, 2024 SCC OnLine Cal 370, order dated 17-01-2024]
*Judgment by Justice Shampa Dutt (Paul)
Advocates who appeared in this case:
Mr. Debasis Kar, Mr. Husen Mustafi, Counsel for the Petitioner
Ultimately accused is free of his obligation to repay the debt
These loophole encourage number of defaulters to avoid liability thereby rendering the act nullity.