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TMI Blog2022 (9) TMI 1116X X X X Extracts X X X X X X X X Extracts X X X X ..... f his liability to pay debt otherwise legally enforceable rather it is established that the cheque was received from Ajit Sinha. The impugned judgement passed by learned Trial Court does not warrant any interference - appeal against order of acquittal merits no consideration and dismissed. - CRA 559 of 2019 - - - Dated:- 19-9-2022 - THE HON BLE JUSTICE SIDDHARTHA ROY CHOWDHURY For the Petitioner : Mr. Kazi Safiullah, Adv. For the Opposite Parties : Mr. Jayanta Narayan Chatterjee, Adv., Ms. Moumita Pandit, Adv., Ms. Jayashree Patra, Adv., Ms. Sreeparna Ghosh, Adv., Ms. Ritashree Banerjee, Adv., Ms. Dipanwita Das, Adv. ORDER Siddhartha Roy Chowdhury, J : - 1. This is an appeal with Special Leave of the Court and challenge in this appeal is to the judgement of acquittal passed by learned Chief Judicial Magistrate, Malda in Case No. 600C/2003 on 17th December, 2017. 2. Briefly stated, Subhrangshu Das, the proprietor of M/s Rahul Enterprise filed a petition of complaint before the learned Chief Judicial Magistrate, Malda under Section 138 of the Negotiable Instrument Act against M/s A.B. Construction being represented by its proprietor Ajay Basu conten ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hu Das as proprietor of the appellant M/s Rahul Enterprise. Therefore, learned Trial Court had no jurisdiction to decide the issues already answered in favour of the appellant, and by necessary implication affirmed by the Co-ordinate Bench of this Hon ble Court in the earlier judgement. The judgement impugned is therefore perverse and should be set aside. 5. In my humble opinion, when the case was sent back on remand with the direction upon the learned Trial Court to permit the appellant to lead further evidence to decide the issue regarding status of Subhrangshu Das as the sole proprietor of the appellant company after setting aside the impugned judgement passed in Criminal Appeal No. 7 of 2014, there is no reason to hold that learned Trial Court transgressed his jurisdiction by passing the impugned judgement upon appreciation of the evidence on record. It was virtually an open remand and learned Trial Court was under obligation to decide all the points required to adjudicate a proceeding under Section 138 of the N.I. Act, after complying with the direction given in CRA 504 of 2013. I am not inclined to imbibe myself with the view expressed by Kazi Safiullah, learned Counsel fo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ke the payment of the said amount of money to the payee or, as the case may be, to the holder in due course of the cheque, within fifteen days of the receipt of the said notice. Explanation.--For the purposes of this section, debt or other liability means a legally enforceable debt or other liability. 9. It is manifest that to constitute an offence under Section 138 of the Act, the following ingredients are required to be fulfilled: (i) a person must have drawn a cheque on an account maintained by him in a bank for payment of a certain amount of money to another person from out of that account; (ii) The cheque should have been issued for the discharge, in whole or in part, of any debt or other liability; (iii) that cheque has been presented to the bank within a period of six months from the date on which it is drawn or within the period of its validity whichever is earlier; (iv) that cheque is returned by the bank unpaid, either because of the amount of money standing to the credit of the account is insufficient to honour the cheque or that it exceeds the amount arranged to be paid from that account by an agreement made with the bank; (v ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the owner of the appellant Enterprise. The document has been admitted as Exhibit-D. From the said document I find that the cheque in question was given to the informant by Ajit Sinha of Mourya Finance Company Limited, which is contrary to the claim of the appellant in this case that cheque was given by Ajay Basu of A.B. Construction. 10. Though the appellant asserted that A.B. Construction is the sister concern of Mourya Finance Company Limited but failed to substantiate the averment by any cogent evidence. 11. It is fact that the proprietor A.B. Construction Ajay Basu was the drawer of the cheque in question and on his instruction Bank did not honour the cheque. 12. Prima facie this fact is sufficient to saddle Ajay Basu the proprietor of A.B. Construction with the criminal liability within the meaning of Section 138 of the N.I. Act. 13. As is held by Hon ble Supreme Court in M.S. Narayan Menon (supra) the presumption arising out of Section 118 (a) and 139 of the N.I. Act are rebuttable and of course the onus to rebut the presumption lies with the respondent, who has been arrayed as an accused. The question that calls for consideration in this matter is whether the acc ..... X X X X Extracts X X X X X X X X Extracts X X X X
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