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2018 (1) TMI 753
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.... 2011 passed by the learned Judicial Magistrate, IV Court, Paschim Medinipur, in CR Case No. 142 of 2007 under Section 138 of the Negotiable Instruments Act, 1881 and sentenced them to suffer simple imprisonment for two years and pay a fine of Rs. 12 lac and thereafter directed that said fine amount if realized be paid to the complainant/opposite party No. 1. Learned Sessions Judge further modified the sentence by affirming the judgment to the effect that Rs. 11 lac ought to be paid towards fine by the petitioners and remaining 1 lac to be credited to the exchequer of the Government of West Bengal. 2. Learned Advocate for the petitioner Mr. Bhattacharya contended that the petitioners have not been properly examined by the learned trial Cou....
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....rted in : (i) 1971 Supreme Court Cases (Cr.) 97. State of Madras v. G.V. Parekh & Anr. (ii) (2014) 1 C. Cr. L.R. (SC) 518 John K. Abraham v. Simon C. Abraham & Anr. 4. Learned Advocate for the opposite party No. 1 contended that there was absolutely no need of proving the financial capacity of the complainant since on the strength of Section 118 of the 139 of the Negotiable Instruments Act it is incumbent upon the Court concerned to presume the existing liability of the petitioners. Moreover, the petitioners also could not prove anything in the trial Court that such cheques were issued as a collateral security. It is further submitted that the burden of proof that the cheque had not been issued for any debt or liability is on the pet....
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....the same by raising some imaginative allegations against the complainant. The petitioners knew at the time of trial as to the nature of allegations levelled against them. The petitioners in support of their contention had tried to establish by examining one witness that in fact cheque was issued as a collateral security. Simultaneously, the petitioners have raised the points of financial capacity of the complainant/opposite parties No. 1 in advancing such loan to the petitioners. That goes to show that in fact the petitioners were well aware of the allegation levelled against them and the examination of the petitioners under Section 313 of the Code of Criminal Procedure has become a mere formality than to give a chance to the petitioner to ....
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....re members of the earlier partnership firm and after issuance of such cheque they have changed the nomenclature of the partnership firm but they remained partners of that partnership firm. Cheque was issued in their personal capacity and accordingly it was not incumbent upon the compliant to implead the partnership firm. The case under reference cannot be challenged only on the ground that the partnership firm has not been arrayed as accused in the case. The decision relied on by learned Advocate of the petitioner reported in 1971 SCC (Cr) 97 (supra) is thus not applicable in the context of the given facts and circumstances of this case. It has been observed by the Supreme Court in the decision reported in (2014) C. Cr. LR (SC) 510 (supra) ....
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....le Instruments Act. In a case under Section 138 of the Negotiable Instruments Act it has been accepted by our Apex Court in a good number of decisions and the learned Advocate for the opposite party No. 1 has referred a few decisions namely : (i) (2001) 6 Supreme Court Cases 16 Hiten P. Dalal v. Bratindranath Banerjee (ii) AIR 2001 Supreme Court 2895 K.N. Beena v. Muniyappan & Anr. 8. In both the cases referred to hereinabove the Apex Court has e consistently held that even by adducing the defence witness petitioners have failed to prove that the cheque was issued as a security by the petitioners. Therefore, the question of dealing with on such point of security becomes redundant. 9. It is apparent from the judgment of both the cour....