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TMI Blog2023 (9) TMI 1363X X X X Extracts X X X X X X X X Extracts X X X X ..... Shampa Dutt (Paul), J. 1. The present revision has been preferred against the Judgment and Order dated 29.11.2019 passed by the Learned Judge, Bench-1, City Sessions Court, Calcutta, in Criminal Revision No.153 of 2017, affirming the Judgment and order dated 20.04.2017 passed by the Learned Metropolitan Magistrate, 3rd Court, Calcutta in Case No. C/4315 of 2012, wherein the petitioner had been convicted under Section 138 of the Negotiable Instruments Act, 1881 and sentenced to suffer imprisonment till rising of the court by way of detention inside the court room and also directed to pay compensation of Rs. 10,00,000/- (Rupees Ten Lakhs) in default to suffer simple imprisonment for 1(one) year. 2. The petitioner s case is that the opposite party filed a complaint case against the petitioner before the Chief Metropolitan Magistrate, Calcutta for commission of offence under Section 138 of the Negotiable Instruments Act, 1881, which was registered as Case No. C/4315 of 2012 and after taking cognizance the said case was transferred to the Court of the Learned Metropolitan Magistrate, 3rd Court, Calcutta (hereinafter to be referred as the Learned Trial Court ) for trial and dis ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d Judge, Bench-I, City Sessions Court, Calcutta (hereinafter to be referred as the Learned Judge ) by Judgment and Order dated 29.11.2019 has affirmed the Judgment and Order dated 20.04.2017 passed by the Court of the Learned Metropolitan Magistrate, 3rd Court, Calcutta in Case No. C/4315 of 2012. 8. Mr. Sanjib Bandyopadhyay, learned counsel for the petitioner has submitted that the impugned judgment and order has been passed mechanically without any appreciation of the materials as placed on record. There has been no application of the judicial mind and both the Learned Appellate Court Judge and the Learned Trial Court have reached at an erroneous finding of guilt and as such the said judgments and orders are liable to be set aside. 9. It is further stated the Learned Trial Court failed to consider that the opposite party in his evidence has admitted that the petitioner s business has been closed since February, 2011 and their company started doing business with the petitioner, in the name and style M/s New Singh Electronics, whereas the cheque in question was dated 24.10.2011, as such issuing cheque after closing of the business does not arise. 10. That the Learned Tria ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rdwan- 713 347 dated 18.01.2012. This is the said cheque return memo and your honour would be pleased to mark the said return memo as Exhibits. ii) Copy of the memo at page 33 supports the same. iii) As directed by the High Court, the petitioner deposited Rs. 5,00,000/- before the Trial Court. iv) The contention of the petitioner/accused/convict is that all dues had been cleared prior to the company in whose name the cheque has been issued, had closed down in March, 2011 and started functioning as new company in the name and style as M/s New Singh Electronics. v) The cheque issued on behalf of the previous company is admittedly dated 24.10.2011, which is 8 months after it had closed down. vi) Supplementary affidavit has been filed in support of the contention that all payments were made as seen from the statement of account till 31.03.2011. vii) Contention of the petitioner is that the cheque was given as security but was misused by the complainant even after the company had closed down. viii) In reply the complainant has stated that such a document, which is unsigned has been produced after 11 long years, and the same is fabricated. ix) The Trial Court an ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... P) Ltd. (1996-2) 113 P.L.R. 332 (S.C.), as well as K.K. Sidharthan v. T.P. Praveena Chandran, (1997-1)115 P.L.R. 233 (S.C.)fs. In these two cases, the cheque in question had been dishonoured because of insufficiency of funds or the amount exceeded the arrangement made with the Bank and in Electronics Trade and Technology Development Corpn. Ltd (supra), the cheque had not been honoured because of the direction from the drawer regarding stop payment. In fact, a plain reading of Section 138 of the Act makes it crystal clear that unless the conditions precedent mentioned therein are satisfied, the said penal provision cannot be attracted. In this view of the matter and on the admitted facts, as referred to in paragraph 5 of the impugned judgment, we have no hesitation in coming to the conclusion that the High Court committed error in relying upon the judgment of this Court in Modi Cements (supra) and refusing to quash the criminal proceeding. We, accordingly, set aside the impugned judgment of the High Court, quash the criminal proceeding and allow the criminal appeal. 17. In M/s. Laxmi Dyechem vs State of Gujarat Ors., Criminal Appeal Nos. 1870-1909 of 2012, 27 November, 2012, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s insufficient to honour the cheque or that it exceeds the amount arranged to be paid from that account by an agreement made with that bank, such person shall be deemed to have committed an offence and shall, without prejudice to any other provision of this Act, be punished with imprisonment of a term which may extend to one year, or with fine which may extend to twice the amount of the cheque, or with both. 8. From the above, it is manifest that a dishonour would constitute an offence only if the cheque is retuned by the bank unpaid‟ either because the amount of money standing to the credit of the drawer‟s account is insufficient to honour the cheque or that the amount exceeds the amount arranged to be paid from that account by an agreement with that bank. The High Court was of the view and so was the submission made on behalf of the respondent before us that the dishonour would constitute an offence only in the two contingencies referred to in Section 138 and none else. The contention was that Section 138 being a penal provision has to be construed strictly. When so construed, the dishonour must necessarily be for one of the two reasons stipulated under Section ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d: The English language is not an instrument of mathematical precision. Our literature would be much poorer if it were. This is where the draftsmen of Acts of Parliament have often been unfairly criticised. A judge, believing himself to be fettered by the supposed rule that he must look to the language and nothing else, laments that the draftsmen have not provided for this or that, or have been guilty of some or other ambiguity. It would certainly save the judges trouble if Acts of Parliament were drafted with divine prescience and perfect clarity. In the absence of it, when a defect appears a judge cannot simply fold his hands and blame the draftsman. He must set to work on the constructive task of finding the intention of Parliament, and he must do this not only from the language of the statute, but also from a consideration of the social conditions which gave rise to it and of the mischief which it was passed to remedy, and then he must supplement the written word so as to give force and life‟ to the intention of the legislature. ... A judge should ask himself the question how, if the makers of the Act had themselves come across this ruck in the texture of it, they ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tion 138 draws presumption that one commits the offence if he issues the cheque dishonestly (emphasis supplied) in our opinion, do not also lay down the law correctly. 20. On a careful reading of Section 138 of the Act, we are unable to subscribe to the view that Section 138 of the Act draws presumption of dishonesty against drawer of the cheque if he without sufficient funds to his credit in his bank account to honour the cheque issues the same and, therefore, this amounts to an offence under Section 138 of the Act. For the reasons stated hereinabove, we are unable to share the views expressed by this Court in the above two cases and we respectfully differ with the same regarding interpretation of Section 138 of the Act to the limited extent as indicated above. 18. In present case the petitioner by an advocates letter dated 21.02.2012 replied to the complainant s Advocates notice dated 01.02.2012 and denied his debt and liability towards the complainant. The petitioners reply further noted that at the time of closure of the original business, in which name the disputed cheque stands, there were no outstanding dues. 19. The Company closed down in March, 2011. 20. A ..... X X X X Extracts X X X X X X X X Extracts X X X X
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