TaxTMI 
TaxTMI 
2026 (5) TMI 747
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....itiated against the present respondent and the cognizance was taken and transferred the case to the court of learned Metropolitan Magistrate, 5th Court, Calcutta for enquiry, trial and disposal. The allegations made in the petition of complaint were as follows; The accused No. 1 a partnership firm and accused no. 2 to 4 are the partners of the accused no. 1 and responsible for the day-to-day conduct of the business of the accused no. 1. The accused persons in discharge of their liabilities issued an account pay cheque dated 28.3.1995 amounting to Rs.1,89,363.54 paisa drawn on United Bank of India, Santoshpur Branch, Kolkata -700032. 3. The complainant duly presented the said cheque with its banker at Kolkata Main branch, but the said cheque was returned on 25.4.1995, with the remark insufficiency of funds, as there was no sufficient money in the account of the accused to honour the cheque. It was further alleged that the complainant thereafter send a notice on 4.5.1995, intimating about the dishonour of the said cheque and thereby called upon the accused persons to pay the sum of Rs.1,89,363.54p within 15 days from the receipt of the said notice. The accused persons received the....
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....the order of acquittal. 6. The Learned Senior Advocate Mr. Ayan Bhattacharjee at the outset argued that the alleged case was started about 30 years back and speedy trial, early, hearing and quick disposal are the sine qua none of criminal jurisprudence and the prolong delay itself can be a ground for non-consideration of the appeal .In this regard relied upon the decision of the Hon'ble Supreme Court in State of Punjab versus Ajaib Singh (1995) 2 SCC 486. It is further assailed that partners cannot be convicted in absence of conviction of firm/company and relied upon the decisions reported in State of Madras versus C.V Parekh and Anr. (1970) 3 SCC 491 (Paragraph 3). 7. The Learned Senior Advocate further relied upon the judgement of Aneeta Hada versus Godfather Travels and Tours Pvt Ltd. (2012) 5 SCC 661 on the similar point where the Hon'ble Supreme Court held in paragraph 32: "32. We have referred to the aforesaid authorities to highlight that the company can have criminal liability and further, if a group of persons that guide the business of the companies have the criminal intent, that would be imputed to the body corporate. In this backdrop, Section 141 of the A....
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....esses. 4) The appellate court may only overrule or otherwise disturb the trial court's acquittal if it has "very substantial and compelling reasons" for doing so. 6) If two reasonable or possible views can be reached one that leads to acquittal, the other to the conviction the High Courts/appellate courts must rule in favour of the accused........... 41. The settled legal position as explained above is that if the trial court's view is possible or plausible, the High Court should not substitute the same by its own possible view......" 9. It is further argued that the complaint under section 138 of the Negotiable Instrument Act, 1881 is valid only if the attorney has proper authority as in this case the complainant is the CEO and proprietor of another firm and authorised by the Director of the Complainant Company. In this regard, the decision relied upon In A.C. Narayanan versus State of Maharashtra and Anr. (2014) 11 SCC 790 where in para 30, it was held and observed that: "30. In the light of the discussion, we are of the view that the power-of-attorney holder may be allowed to file, appear and depose for the purpose of issue of process for t....
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....examined under Section 313 Cr.P.C. The defence cited the complainant as defence witness. It was the definite case of the accused that a blank cheque was issued and delivered to as 'security' for the realisation of the debts and liabilities of the accused for medicines supplied to them by the complainant concerned which was filled up and the amount was inserted without the consent and knowledge of the accused persons. 12. The learned Magistrate while deciding the case for the second time on the issue that whether the cheque was issued in discharge of debt and liabilities of the accused person observed that from the evidence on record, it was found that the medicines were sold and supplied to the accused firm from time to time and the payments were received from time to time were credited to their account, but there is no evidence to the effect that if final settlement of accounts took place between both the parties and the final dues of the accused firm was ascertained in presence of both the parties without such final settlement of accounts and the complainant unilaterally put an amount in the blank cheque and presented the same for encashment. In such circumstances, the complai....
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....d to above is that the onus to rebut the presumption under section 139 that the cheque has been issued in discharge of a debt or liability is on the accused and the fact that the cheque might be post-dated does not absolve the drawer of a cheque of the penal consequences of section 138 of the negotiable instrument Act. 33. A meaningful reading of the provisions of the Negotiable Instruments Act, including in particular, Section 20, 87 and 139, makes it amply clear that a person who signs a cheque and makes it over to the payee remains liable unless he adduces evidence to rebut the presumption that the cheque had been issued for payment of a debt or in discharge of a liability. It is immaterial that the cheque may have been filled in by any person other than the drawer, if the cheque is duly signed by the drawer. If the cheque is otherwise valid, the penal provisions of section 138 would be attracted. 34. If a signed blank cheque is voluntarily presented to a payee, towards some payment, the Payee may fill up the amount and other particulars. This in itself would not invalidate the cheque. The onus would still be on the accused to prove that the said cheque was not....
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....efore the High court when previously the Appeal was filed. The Learned Co-ordinate Bench discarded the said point, decided that under section 141 of the Negotiable Instrument Act the complaint under section 138 can be made by the payee or the holder in due course of the cheque,It was further held that anyone can set the criminal law in motion by filing a complaint of facts constituting of offence before a Magistrate entitled to take cognizance on the sole ground that the complainant was not competent to file the complaint of the complainant and remanded back the matter to decide afresh. It was any employee of the company can represent company in the court proceeding and the relationship between Mr. Banerjee and the payee company and between Sri Gupta and payee company is well established .Therefore the point raised with regard to the authorisation being not considered by the learned trial court cannot be said to be either illegal or perverse . 15. Hence the above discussions left with the point for consideration whether after a prolong delay in disposal of the case itself would be the ground for not considering the appeal. The argument advanced by the Learned Senior Advocate tha....
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....en the government may consider either to increase the strength to clear the backlog or device some mechanism by which criminal appeals pending for more than reasonable time in higher courts should stand disposed of." 16. It is further contended that precise and well vision ground in memorandum of appeal is imperative and which is absolutely absent in the instant appeal. This is a futile attempt to revive a case when on third occasion, the learned Magistrate passed such order of acquittal. In this regard relied upon the decision of Kapil Deo Shukla versus State of Uttar Pradesh AIR 1958 SC 121 in paragraph 4, it was observed that; "4. Assuming that the High Court was correct in its appreciation of the legal position, even so, we must express our disapproval of any such practice as has been referred to in the judgement below. A memorandum of appeal is meant to be a succinct statement of the grounds upon which the appellant proposes to support the appeal. It is a notice to the court that such and such specific grounds are proposed to be urged on behalf of the appellant, as also a notice to the respondent that he should be ready to meet those specific grounds. A memorandum ....