TaxTMI 
TaxTMI 
2005 (12) TMI 607
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....ing C.R.A.N. No. 598/05 praying for vacating the interim order dated 14.1.05 passed by this Court. I intend to dispose of both the revisional applications being C.R.R No. 175/05 and application being C.R. A.N. No. 598/05 by this common judgment and order. 2. Mr. Subodh Ukil, learned Senior Advocate appearing for the petitioner of the revisional application submitted that the cheque in question bearing No. 143476 drawn on State Bank of India, Taratola Branch was handed over to one Kamal Prasad Basu, along with letter heads which he promised to retain only as security and he had transaction with Kamal Prasad Basu for loan. The said cheque though was signed by the petitioner was blank in respect of amount of the cheque and was undated. When the petitioner demanded return of the signed blank cheque and letter heads said Kamal Prasad Basu did not return the cheque and the blank letter heads. The petitioner, thereafter, informed the matter to the Officer-in-Charge, Beniapukur P.S. through written complaint dated 29.6.01 explaining the conduct of said Kamal Prasad Basu and also the fact of non-return of the signed blank cheque and letter heads by Kamal Prasad Basu to him. There was no mo....
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....by registered post with A/D and Anr. notice under certificate of posting asking him to make payment of the amount of cheque within 15 days from the date of receipt of the notice. The accused petitioner received the notice on 19.6.03 and in spite of that the accused petitioner did not pay the amount of cheque to the complainant. Thereafter, within time the complainant lodged the complaint and the said complaint is perfectly maintainable in view of the provisions of Section 138 of the NI Act. The story introduced by the accused person is not believable, and moreover, the said story cannot be considered at this stage when recording of evidence is pending. The accused petitioner at the time of his evidence or at the time of rebutting the presumption tinder Section 139 of the NI Act would be at liberty to adduce sufficient evidence to make out his case that he did not handover the cheque to complainant and that he handed over one signed but blank undated cheque to one Kamal Prasad Basu. The contentions raised by the accused petitioner are not at all acceptable at this stage and the learned Magistrate rightly rejected the petition of accused petitioner. 5. After hearing the submissions ....
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....edure Code (in short Code) and thereafter applying his mind he has to consider whether to issue process or not. In the present matter the learned Magistrate after going through the averments of the complaint, the statement of witnesses recorded under Section 200 of the Code and going through the papers and documents issued the process against the accused petitioner. After appearance, if the accused takes any plea or alibi, the Court is not to consider the same at the very threshold of hearing of the complaint when evidence on behalf of complainant has not been recorded. The defence plea or the defence alibi, if any, is to be considered after closure of evidence of both sides. 7. In the instant matter admittedly there was a cheque in the hand of the complainant and he was holder of the cheque and the said cheque bears the signature of petitioner. The said cheque was presented by complainant to his bank and it was dishonoured. The complainant thereafter sent demand notice to the accused in view of provisions of NI Act and the accused received the notice, but did not make payment of the dishonoured cheque within 15 days from the date of receipt of the notice. Instead he sent a reply ....
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....38 of the NI Act and this provision is based on a special statute being the NI Act which deals with negotiable instruments. It is true that according to the provisions of Income Tax Act transaction at a time exceeding Rs. 20,000/-has to be made through bank either by cheque or by draft but, that itself is not a ground to quash the complaint. If any one has violated provisions of Income Tax Act, the Income Tax authorities would take penal action against such person. That a person has allegedly violated provisions of Income Tax Act is not a ground to curtail his right of taking the shelter of Court and law to enforce his remedy for violation of provisions of NI Act. At this stage, prima facie the complainant is the holder of cheque and the presumption under Section 139 of the NI Act is in his favour. The cheque when presented by the complainant to bank was dishonoured and the cheque bears the signature of the accused petitioner. The moment the cheque was dishonoured, it invited elements of offence under the NI Act and the offence under Section 138 of the NI Act completed when after demand notice the petitioner did not make payment of the dishonoured cheque. If it was the intention of....
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....f the money the accused petitioner would have been definitely in a better position and was entitled to the advantage of violation of Sections 23 and 24 of the Contract Act as well as non-existence of money lending business of the money lender. The accused petitioner has only remedy in the trial to rebut the presumption under Section 139 of the NI Act, and to establish his case by leading evidence when he would be asked to enter into defence after his examination under Section 313 of the Code would be over. When all the prima facie materials of offence under Section 138 of the NI Act is present sufficient to issue process this, Court would not interfere into the order of the learned Magistrate and would not quash the criminal proceeding or set aside the order of the learned Magistrate. The accused petitioner has remedy only to lead evidence by examining witnesses and producing documents to prove that there was no transaction with complainant or that he did not issue any cheque in favour of the complainant and that there was no existing debt or liability at the time of his entering into defence and leading his evidence. 12. The point for consideration before the learned Magistrate w....
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....t read with demand notice fulfils the essential requirements of mentioning that cheque was issued in discharge of any legal enforceable debt or liability. A mere complaint under Section 138 of the NI Act is not maintainable unless the complainant issued demand notice and after dishonour of the cheque the accused fails to make payment of the dishonoured cheque within 15 days of receipt of demand notice. In the instant case the defect was cured through the averments of demand notice and there is no ground to dismiss the complaint for failure to mention in complaint that cheque was issued for discharge of debt or liability. 16. Mr. Moitra for the complainant O.P. submitted that in the instant matter the essential requirements for fulfilling offence under Section 138 of the NI Act are there and there was sufficient materials to issue process under Section 138 of the NI Act against the petitioner. After trial on the basis of evidence the learned Magistrate would come to a finding whether complainant has been able to establish his case or not or, whether the story which the accused petitioner wants to introduce are reliable and acceptable. All the points raised by the accused petitioner....