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Calcutta High Court · body

2011 DIGILAW 1407 (CAL)

Saifuddin Mondal v. STATE OF WEST BENGAL

2011-11-09

KANCHAN CHAKRABORTY

body2011
JUDGMENT 1. THE challenge in this revisional application is to the judgment and Order dated 24.04.2007 in Criminal Appeal No. 1 of 2007 passed by the Learned Additional Sessions Judge, 5th Court, Burdwan dismissing the appeal of the petitioner in part and affirming the order of conviction and sentence of the petitioner dated 29.11.2006 passed by the Learned Judicial Magistrate, 2nd Court, Burdwan in C. R. Case No, 535 of 1998 under Section 138 of the Negotiable Instruments Act. 2. THIS revisional application has been filed by the petitioner challenging the legality, validity and propriety of the order mainly on the ground that the demand notice which was issued on the petitioner under clause (b) of the proviso to Section 138 was not in consonance with the provisions of law and the Id. trial Court as well as the appellate Court failed to deal with that particular important legal aspect while passing the judgments. The petitioner has challenged concurrent findings whereby his conviction under Section 138 of the Negotiable Instruments Act was recorded. Ordinarily, the High Court does not interfere into a concurrent findings unless there is violation of any principle of fundamental or established law resulting in gross miscarriage of justice. 3. IN this revisional application, the petitioner has raised a legal question and violation of established principle of law. Therefore, the question so raised by the petitioner is to be answered and this Court cannot avoid the issue simply because the revisional application is filed against a concurrent findings. 4. MR. Pachhal, learned Advocate appearing on behalf of the petitioner has taken to the petition of compliant, the demand notice as well as the judgments passed by the learned trial Court and the Id. appellate Court and submitted that the loan allegedly given by the opposite party to the petitioner was for Rs. 55,000/-. The cheque in dispute was for Rs. 50,000/-. The demand notice which was marked exhibit 6 was for repayment of loan amount of Rs. 55,000/- not for the cheque amount. He also contended that the opposite party could have sent or served the demand notice for of the cheque amount together with incidental costs. But, in this case, he had directly claimed the loan amount instead of cheque amount or by making any break up calculation of the amount demanded. Mr. 55,000/- not for the cheque amount. He also contended that the opposite party could have sent or served the demand notice for of the cheque amount together with incidental costs. But, in this case, he had directly claimed the loan amount instead of cheque amount or by making any break up calculation of the amount demanded. Mr. Ahmed, learned Advocate for the opposite party-contended that he cannot change the position of the case and left the entire matter to this Court. 5. IT is well settled that to constitute an offence under Section 138 of the Negotiable Instruments Act, the following facts are required to be proved : i) Drawing of the cheque ; ii) Presentation of the cheque to the bank; iii) Returning of the cheque unpaid by the drawee bank ; iv) Giving of notice in writing to the drawer of the cheque demanding payment of the cheque amount; v) Failure of the drawer to make payment within 15 days of the receipt of the notice 6. THEREFORE, giving of notice in writing to the drawer of the cheque demanding payment of the cheque amount is an essential ingredient for constituting an offence under Section 138 of the N. I. Act. The language of clause (b) of the proviso to the Section 138 of the Act is free from any kind of ambiguity. It says about issuance of demand notice in writing to the drawer of the cheque for the payment of the "said amount of money." 7. THE words "said amount of money" mean the amount of the cheque which was drawn but returned by the drawee bank. The notice for the loan amount due instead of specific amount of cheque in dispute cannot be said to be valid in view of the provisions laid down under Section 138 of the N. I. Act, There should be demand of the amount of the cheque in dispute specifically in the notice. The question would have been otherwise had the demand of notice was sent for the cheque amount together with incidental charges mentioned specifically in the notice. In the instant case, the exhibit 6, /. e., the demand notice does not speak about the cheque amount but the entire loan amount of Rs. 55,000/-. THE amount so demanded is not severable from the actual cheque amount. In the instant case, the exhibit 6, /. e., the demand notice does not speak about the cheque amount but the entire loan amount of Rs. 55,000/-. THE amount so demanded is not severable from the actual cheque amount. To be stated precisely, the opposite party claimed the entire loan amount instead of cheque amount for which a money suit may lie but not a prosecution under Section 138 of the N. I. Act. 8. THIS Court finds that the Id. trial Court as well as the Id. appellate Court did not address that issue at all but had taken a view hypothetical which was not at all the case of the petitioner or the opposite party. The trial Court had taken it for granted that there was a typographical error in the notice while the amount of Rs.55,000/- was typed. The Id. appellate Court also accepted that view of the Id. trial Court. It is astonishing to find that not a single word was spared by the opposite party in course of his examination in trial Court that there was a typographical error in the notice and that in place of Rs.55,000/-, Rs.50,000/- was wrongly typed. No question even in suggestion form was also put to the witness in that regard. The notice was admitted into evidence as it was along with its contents. Therefore, the Id. trial Court made out a third case which was approved by the learned appellate Court. That view of the Id. Court cannot be sustained. I find substance in the submission of Mr. Pachhal, learned Advocate for the petitioner. Although the petitioner has challenged concurrent findings, the findings of the Courts are suffering from legal infirmity and cannot be rectified. 9. IN order to constitute an offence under Section 138 of the N. L Act, a valid notice of demand in writing for the cheque amount is to be issued. When the complainant issued demand notice for the loan amount instead of the cheque amount necessary requirements for constituting the offence under Section 138 of the N. I. Act cannot be said to have seen fulfilled, 10. When the complainant issued demand notice for the loan amount instead of the cheque amount necessary requirements for constituting the offence under Section 138 of the N. I. Act cannot be said to have seen fulfilled, 10. THE notice, therefore, being invalid it cannot be said that the offence under Section 138 of the N. I. Act was constituted against the petitioner and service of that notice has given rise to any cause of action in favour of the opposite party to prosecute him under Section 138 of the N. I. Act. In view of the discussion above, I allow the revisional application and set aside the order impugned. 11. THE revisional application stands disposed of accordingly. 12. CRIMINAL Section is directed to supply urgent photo-stat certified copy of this order, if applied for, to the parties on usual undertakings.