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TaxTMI 
TaxTMI 
TaxTMI 
2025 (11) TMI 1426
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....struments Act, 1881 (In short N.I. Act) whereby and whereunder the petitioners were convicted for offences punishable under Section 138 of the N.I. Act. Consequently, Petitioner no. 1/Ma Kreeng Construction Pvt. Ltd. was sentenced to pay a compensation of an amount of Rs. 10,00,000/- (Rupees ten lakhs only) to the complainant within one month from the date of judgment, in default, the complainant will have the liberty to take appropriate legal steps against the convict company/petitioner no. 1. Petitioner nos. 2 and 3 were sentenced to suffer simple imprisonment for three months each and pay a compensation of an amount of Rs. 20,00,000/- (Rupees twenty lakhs only) each to the complainant within one month from the date of judgment, in default, to suffer further simple imprisonment for another one month each. FACTS OF THE CASE 3. Brief facts of the case of the Complainant/Opposite Party no. 1 are as follows: - a. The complainant/opposite party No. 1 and his wife, Smt. Sharmila Saha had agreed to purchase an office space of approximately 2500 sq. ft. (super built-up area) on the first floor at premises No. 118, Raja Dinedra Street, P.S. Burtolla, Kolkata-700 004, from t....
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....should be followed strictly and any deviation in the proceeding, as has been done in the instant case, calls for interference and should have set aside the conviction to prevent the abuse of process of law but the Revisional court dismissed the revisional application. Hence, the Petitioners have filed this application before this Court praying for setting aside the aforesaid impugned judgment and order to secure the ends of justice. SUBMISSIONS ON BEHALF OF THE PETITIONERS: 4. Learned counsel appearing on behalf of the petitioners/accused argued that the complaint under Section 138 of the Negotiable Instruments Act, 1881, is not maintainable in the instant criminal proceeding, since there was no such transaction or agreement for refund. The cheque in question was allegedly obtained under duress. It is, therefore, the case of the Petitioners that the Trial Court erred in law and fact in convicting them. 5. It was further submitted that the revisional court also did not properly assess the case of the petitioners. The complainant further failed to state the place of issuance, the handing over of the cheque, and the signing of the agreements during cross-examination. Such fac....
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....fine which may extend to twice the amount of the cheque, or with both : Provided that nothing contained in this section shall apply unless- (a) the cheque has been presented to the bank within a period of six months from the date on which it is drawn or within the period of its validity, whichever is earlier; (b) the payee or the holder in due course of the cheque, as the case may be, makes a demand for the payment of the said amount of money by giving a notice in writing, to the drawer of the cheque, [within thirty days] of the receipt of information by him from the bank regarding the return of the cheque as unpaid; and (c) the drawer of such cheque fails to make the payment of the said amount of money to the payee or, as the case may be, to the holder in due course of the cheque, within fifteen days of the receipt of the said notice. Explanation. - For the purposes of this section, "debt or other liability" means a legally enforceable debt or other liability. 8. The N.I. Act, 1881 was enacted to define and amend the law relating to Promissory Notes, Bills of Exchange and Cheques. By the Banking, Public Financial Institutions and Neg....
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.... country suffers a serious setback. Parliament, in order to restore the credibility of cheques as a trustworthy substitute for cash payment enacted the aforesaid provisions. The remedy available in a civil court is a long-drawn matter and an unscrupulous drawer normally takes various pleas to defeat the genuine claim of the payee." 12. The Hon'ble Supreme Court in the case Indian Bank Association v. Union of India (UOI), Writ Petition (Civil) No. 18 of 2013 decided on 21.04.2014, also observed the following: - "Sections 138 to 142 of the Act were found to be deficient in dealing with the dishonoured cheques. The legislature inserted new Sections 143 to 147 by the Negotiable Instruments (Amendment and Miscellaneous Provisions) Act, 2002 and earlier to this the Negotiable Instruments Act, 1881 was amended by the Banking, Public Financial Institutions and Negotiable Instruments Laws (Amendment) Act, 1988 whereby a new Chapter XVII was incorporated for penalties in case of dishonour of cheques due to insufficiency of funds in the account of the drawer of the cheque to encourage the culture of use of cheques and enhancing the credibility of the instrument." 13. The Hon'bl....
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....16. The entire defence of the Petitioners rests upon 2 contentions: - a. That the cheque and the refund agreement dated 19th May, 2009, were obtained under coercion; and b. That no consideration amount of Rs. 68,00,000/- was ever paid by the complainant and therefore no legally enforceable liability existed. 17. Insofar as the allegation of coercion is concerned, this Court finds that apart from the bald allegation and complaint, purportedly lodged by Petitioner no. 2 on the same date, there was no independent, reliable, or corroborative evidence before the Trial Court. Only lodging of a complaint, without any substantive proof of coercion, threat, or compulsion, cannot displace the statutory presumption, especially when the Petitioners chose to remain silent thereafter and did not take any concurrent step to challenge the validity of the agreement of the cheque. In Kumar Exports v. Sharma Carpets reported in (2009) 2 SCC 513, the Supreme Court held that a mere bald plea is insufficient; the accused must bring probable evidence on record to support his contention. Such evidence is squarely absent in the present case. 18. The plea of non-payment of Rs. 68,00,....