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TMI Blog2022 (5) TMI 467X X X X Extracts X X X X X X X X Extracts X X X X ..... payment. The presumption under Section 139 of the Negotiable Instrument Act which arose against the accused respondents have not been rebutted. It is therefore clear that the cheque (Exhibit 1) was issued by one of the Directors of the company for discharge in whole or in part of any debt of other liability. Learned Magistrate ahs committed an error in law by not placing reliance upon the demand notice and observing in his judgment that the demand has not been proved. Once a document is admitted in evidence without any objection the legal consequence is that reliance has to be placed upon its content unless the same is disputed - omission to raise objection at the time of admission of Exhibit 12 in evidence is fatal to the defence case and there is no reason to relegate the validity of the document as not prove. The evidence on record is cogent and consistent and the same establishes the offence under Section 138/141 of the Negotiable Instrument Act against Respondents no. 2 to 5 beyond reasonable doubt. The judgment of acquittal passed by learned Magistrate suffers from illegality as it is not based upon the evidence on record. Learned Magistrate has failed to appreciate ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ated 2.9.2000, addressed to the Respondents no. 2 to 5, informing them that the cheque was dishonoured and asked them to make payment of the cheque amount within 15 days from the date of receipt of the said notice. 7. The Respondents no. 2 and 4 received the said notice on 6.9.2000 while Respondent no. 3 and 5 received the notice on 15.9.2000 but failed to pay the amount claimed. Under such circumstances Respondents no. 2 to 5 committed an offence punishable under section 138/141 of the Negotiable Instrument Act. On 3.10.2000 learned Chief Metropolitan Magistrate, Kolkata on the basis of complaint was pleased to take cognizance of the offence and after examining the authorized representative of the appellant company was pleased to find that a prima facie case was made out against Respondents no. 2 to 5 under sections 138/141 of the Negotiable Instrument Act and issued process against them. 8. Respondents no. 2 to 5 thereafter appeared before the court and the case was transferred to the court of Learned 13th Metropolitan Magistrate, Kolkata for disposal. On 25.9.2001, Respondents no. 2 to 5 were examined under section 251 of the Code of Criminal Procedure and the substance of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... grounds inter alia, that learned Magistrate passed the impugned judgment without application of judicial mind as such the same is liable to be set aside, that the impugned judgment and order is erroneous and the same is not tenable under the law and that the prosecution has proved the offence against Respondents no. 2 to 5 beyond reasonable doubt and under such circumstances the impugned judgment and order acquitting Respondents no. 2 to 5 is bad in law and is liable to be set aside. 17. It is further contended that the requirements under section 138 of the N.I Act has been compiled by the appellant company and Respondents no. 2 to 5 have admitted there failure to pay the amount mentioned in the cheque despite receipt of the said demand notice. In such circumstances learned Magistrate has committed grave error of law by acquitting Respondents no. 2 to 5 for which the impugned judgment order is liable to be set aside. 18. Learned advocate for the appellant company argued that in a case under section 138 of the N.I Act the mandatory requirement of issue of notice to the drawer in terms with section 138 proviso (b) is complete when the notice is sent in the said manner. The draw ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mplaint and thereby free himself from the penal consequence. In support of his submission learned advocate relied upon the case of CC Alavi Haji vs. Palapetty Mohummed; 2007(6) supreme court cases 555, where it was laid down by the Hon ble Court that, the requirement to give a notice is a clear departure from the rule of criminal law, where there is no stipulation of giving a notice before filing of a complaint. Any drawer who claims that he did not receives the notice sent by post, can, within 15 days of receipt of the summons from the court in respect of the complaint under Section 138 of the Act, may make payment of the cheque amount and submit to the court that he had made payment within 15 days of receipt of summons (by receiving a copy of the complaint with the summons) and, therefore, the complaint is liable to be rejected. A person who does not pay within 15 days of receipt of the summons from the court along with the copy of the complaint under section 138 of the Act, cannot obviously contend that there was no proper service of notice as require under section 138, by ignoring statutory presumption to the contrary under section 27 of the General Clauses Act and Section 114 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... (ii) where the objection does to dispute the admissibility of the document in evidence but is directed towards the mode of proof alleging the same to be irregular or insufficient. In the latter case, the objection should be taken when the evidence is tendered and once the document has been admitted in evidence and marked as an exhibit, the objection that it should not have been admitted in evidence or that the mode adopted for proving the document is irregular cannot be allowed to be raised at any stage subsequent to the marking of the document as an exhibit. The latter proposition is a rule of fair play. The crucial test is whether an objection, if taken at the appropriate point of time, would have enabled the party tendering the evidence to cure the defect and resort to such mode of proof as would be regular. The omission to object becomes fatal because by his failure the party entitled to object allows the party tendering the evidence to act on an assumption that the opposite party is not serious about the mode of proof. 25. Reliance has also been placed by learned advocate for the appellant on the decision in the case of Sanjib Kumar Ghosh Vs. Dolon Adhikari Anr; 2016 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he same was served upon accused no. 1 and 3 on 06.09.2000 and on accused no. 2 and 4 on 15.09.2000 but the accused persons/ respondents did not make any payment. 28. Prosecution examined three witnesses and produced several documents including the dishonoured cheque which is marked as Exhibit 1, cheque returned memo Exhibit 2 statement of account of the accused company with Bank of India as Exhibit 3 and Exhibit 4, authorization letter from the Bank in favour of witness Abhijit Sarkar to appear as a witness has been produced as Exhibit 5, cheque return memo as Exhibit 6, statement of account of the complainant bank as Exhibit 7, copy of power of attorney in favour of Amarnath Chatterjee by the complainant company is marked as Exhibit 8, postal receipt as Exhibit 9 series, AD Cards in the name of accused persons as Exhibit 10 series, the petition of complaint under Section 138 N.I Act as Exhibit 11 and the true copy of demand notice as exhibit 12. On reappreciation of evidence on record I find that there is no denial of the fact that the cheque was issued in favour of the complainant company and the same was returned dishounoured. After dishonor of the cheque the complainant issu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ument as not prove. The evidence on record is cogent and consistent and the same establishes the offence under Section 138/141 of the Negotiable Instrument Act against Respondents no. 2 to 5 beyond reasonable doubt. 32. I, therefore, hold that the judgment of acquittal passed by learned Magistrate suffers from illegality as it is not based upon the evidence on record. Learned Magistrate has failed to appreciate the case in its proper perspective in the light of the evidence on record, consistent with object of legislation, as such the same is liable to be set aside and the impugned judgment passed by Learned Metropolitan Magistrate 13th Court, Calcutta in C Case no.5021 of 2000 acquitting the accused persons is therefore set aside and the judgment is reversed. 33. The accused company/ Respondent No.2 and it s three directors who are Respondents no. 3 to 5 in this appeal are found guilty of the offence punishable under section 138/141 of that N.I Act they are convicted for the said offence. In view of the outstanding cheque amount of Rs.5,12,188/- which was dishonoured and unpaid since 29.05.2000, I consider it appropriate and reasonable to sentence the accused company and its ..... X X X X Extracts X X X X X X X X Extracts X X X X
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