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        High Court Reverses Acquittal, Imposes Imprisonment & Compensation for NI Act Violation

        Sanjib Kumar Ghosh Versus Dolon Adhikari and Ors.

        Sanjib Kumar Ghosh Versus Dolon Adhikari and Ors. - TMI Issues Involved:
        1. Acquittal of the accused under Section 138 of the Negotiable Instruments Act, 1881.
        2. Validity of the service of notice under Section 138B of the N.I. Act.
        3. Existing liability and professional money lending status of the complainant.
        4. Examination of evidence and comparison of signatures on A/D cards.
        5. Reversal of the trial court's judgment and sentencing.

        Detailed Analysis:

        1. Acquittal of the Accused under Section 138 of the N.I. Act:
        The appeal was against the judgment and order of acquittal dated 28.06.2013 by the Judicial Magistrate, Sealdah, in complaint case No. 86 of 2011. The trial court acquitted the accused on the grounds that the notices were not served as the A/D cards did not bear any postal stamp and no receipt from the postal department was filed.

        2. Validity of the Service of Notice under Section 138B of the N.I. Act:
        The appellant argued that the trial court should not have relied heavily on the accused's denial of receipt of notice under Section 313 of the Cr.P.C. The appellant cited several Supreme Court decisions, including *Devender Kumar Singla v. Baldev Krishan Singla* and *M/s. Indo Automobiles v. M/s. Jai Durga Enterprises & Ors.*, which held that once a notice is sent by registered post to the correct address, it must be presumed to have been served. The trial court, however, found that the notices were not served due to lack of postal endorsement on the A/D cards.

        3. Existing Liability and Professional Money Lending Status of the Complainant:
        The trial court held in favor of the appellant that the complainant was not a professional money lender and that the cheques were issued in discharge of existing liability. The accused failed to prove that he had paid the amount mentioned in the cheques. The respondent's counsel argued that the notices issued were not proved and that there was no existing liability on the part of the accused, which is essential under Section 138 of the N.I. Act.

        4. Examination of Evidence and Comparison of Signatures on A/D Cards:
        The trial court did not compare the signatures on the A/D cards with the admitted signatures of the respondent. The High Court compared the signatures on the A/D cards with the admitted signatures on the cheques, letter to the banker, bail bonds, and vakalatnamas, and concluded that the signatures matched. Thus, the claim that the respondent did not sign the A/D cards was found to be false.

        5. Reversal of the Trial Court's Judgment and Sentencing:
        The High Court held that the accused had duly received the notices and that the cheques were issued in discharge of existing liability. The judgment of acquittal by the trial court was reversed. The respondent was found guilty under Section 138 of the N.I. Act and was sentenced to rigorous imprisonment for ten days and to pay compensation of Rs. 1,81,000/- to the appellant within one month, failing which he would have to suffer further rigorous imprisonment for one year.

        Conclusion:
        The appeal was allowed, and the respondent was found guilty under Section 138 of the N.I. Act. The respondent was ordered to surrender before the trial court within 30 days to serve the sentence, failing which a warrant of arrest would be issued. The case was remanded to the trial court for necessary action.

        Topics

        ActsIncome Tax
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