TaxTMI 
TaxTMI 
2026 (10) TMI 387
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....ated 14th December, 2021, passed by the learned Additional Sessions Judge (Re-designated Court), Bankura in Criminal Appeal No. 7 of 2019. By the said impugned appellate judgment, the learned Additional Sessions Court was pleased to affirm the judgment and order of conviction and sentence dated 7th March, 2019, passed by the 6th Court of the learned Judicial Magistrate, First Class, Bankura in Complaint Case No. 220C of 2017, whereby the petitioner was convicted under Section 138 of the N.I. Act and was sentenced to suffer simple imprisonment for six months, alongside a direction to pay Rs.10,00,000/- as compensation under Section 357(3) of the Cr.P.C. 2. To properly comprehend the canvas of this litigation, I must first trace its genesis. The narrative unfolds with the lodging of a petition of complaint by the opposite party no. 1, Sanjib Goswami, before the learned Chief Judicial Magistrate, Bankura which was registered as Complaint Case No. 220C of 2017. The foundational premise of the complaint was that the father of the complainant had, from time to time, reposed immense trust in the petitioner, who was closely associated with postal savings and deposit schemes, by handing ....
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....laimed to be tried, thereby setting the adversarial wheels in motion. During the extensive course of the trial, the complainant adduced both oral and documentary evidence. The complainant himself stepped into the witness box as P.W. 1 on affidavit, meticulously detailing the entrustment of funds, the forged passbooks, the written confession, the issuance of the cheque, its presentation, subsequent dishonour, and the statutory notice. To formally establish the banking transaction and the return memo, the Branch Manager of the SBI Harigram More Branch was examined as P.W. 2. Alongside oral testimony, the complainant brought on record vital documentary exhibits, including the dishonoured cheque (Exhibit 1), the deposit slip (Exhibit 2), the bank return memo (Exhibit 3), the demand notice along with postal envelopes and A/D cards (Exhibits 4, 4a, 4b), the seizure list (Exhibit 5), the notarized agreement (Exhibit 6), and the written declaration executed by the petitioner (Exhibit 7). 5. Upon the closure of the complainant's evidence, the petitioner was examined under Section 313 of the Cr.P.C., where he offered a wholesale denial of all incriminating circumstances, branding the ....
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.... original transaction records, and the lack of direct testimony from postal officials establishing his active accountability. 8. Seizing upon this subsequent acquittal in a parallel proceeding, the learned counsel for the appellant/convict vehemently argued before the Additional Sessions Court that the very foundation of the cheque debt stood legally demolished. It was further urged, relying upon prominent authorities such as Rangappa v. Sri Mohan [(2010) 11 SCC 441], D. Vinod Shivappa v. Nanda Belliappa [(2006) 6 SCC 456], C.C. Alavi Haji v. Palapetty Muhammed & Anr. [(2007) 6 SCC 555], and Basalingappa v. Mudibasappa [(2019) 5 SCC 418], that the statutory demand notice was never served because the petitioner was incarcerated in a correctional home at the time of dispatch, and that the statutory presumptions under Sections 118 and 139 of the N.I. Act were grossly misapplied. 9. Per contra, the learned counsel for the respondent/complainant, relying on Indo Automobiles v. Jai Durga Enterprises & Ors. [(2008) 8 SCC 529] and C.C. Alavi Haji (supra) countered before the Sessions Court, that the written notarized agreement and declaration (Exhibits 6 and 7) independently proved t....
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....ons of the parties have been advanced with considerable legal acumen. To properly evaluate the merits of the challenge mounted against the concurrent judgments of conviction, it is essential to set out, analyse, and juxtapose the rival submissions advanced by the learned counsels for the petitioner (convict-appellant) and the opposite party (complainant-respondent), keeping in view the foundational facts, statutory provisions, and judicial precedents brought on record. 13. The learned counsel for the petitioner strenuously contends that the impugned judgment and order of conviction, as affirmed by the First appellate court, are entirely unsustainable in law and facts, having been rendered on surmises and conjectures without proper appreciation of material contradictions in the evidence. The primary plank of the petitioner's argument rests upon the foundational premise of the debt; it is submitted that the entire substratum of the complaint under Section 138 of the N.I. Act was rooted in the allegation that the petitioner had misappropriated money entrusted to him by the complainant's father for Post Office MIS deposits. In this regard, the petitioner places heavy reliance up....
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....cation is thoroughly devoid of merit and represents a desperate attempt by a convicted fraudster to escape the rigors of law. It is submitted that the complainant successfully discharged his initial burden by stepping into the witness box as P.W. 1 and adducing robust documentary evidence, including the dishonoured cheque (Exhibit 1), the bank return memo reflecting "Insufficient Funds" (Exhibit 3), and most importantly, the written notarized agreement and declaration (Exhibit 6 and 7) wherein the petitioner unequivocally admitted his misappropriation of funds and acknowledged his monetary liability in favour of the complainant to the tune of Rs.8,00,000/-. These documents, according to the learned counsel for the Opposite Party No. 2, constitute an independent, legally enforceable civil and monetary liability that squarely attracts the operation of Section 138 of the N.I. Act, irrespective of the procedural technicalities or different standards of proof in a separate police-investigated IPC trial. 18. Addressing the issue of the statutory demand notice and the invocation of statutory presumptions, the learned counsel for the Opposite Party No. 2 placed explicit reliance upon th....
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....lusive, and judicious disposal of the instant criminal revisional application hinges upon the determination of the following pivotal questions of law and fact: i. Whether an order of acquittal recorded in a separate, substantive criminal trial under Sections 409 and 420 of the IPC (concerning the underlying postal fund embezzlement) automatically and legally obliterates the existence of "legally enforceable debt or liability" required under Section 138 of the Negotiable Instruments Act, so as to vitiate a conviction based on an independently executed written acknowledgement, notarized agreement, and a dishonoured negotiable instrument? ii. Whether the petitioner successfully discharged his "reverse onus" under Sections 118 and 139 of the N.I. Act by establishing a probable defence on a preponderance of probabilities through a mere uncorroborated statement under Section 313 of the Cr.P.C. regarding a "snatched cheque book," in the absolute absence of any contemporaneous police General Diary (G.D.), FIR, or written communication to his banker? iii. Whether the mandatory requirements concerning the dispatch, delivery, and service of the statutory demand noti....
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....er vide Bankura P.S. Case No. 63 of 2017 dated 23.02.2017 under Sections 409 and 420 of the IPC concerning the underlying postal funds embezzlement. In that substantive criminal trial, the 1st Court of the learned Additional Sessions Judge, Bankura, by a judgment dated 4th July, 2019, recorded an acquittal in favour of the petitioner. A careful perusal of the grounds of that acquittal demonstrates that the criminal court exonerated the petitioner not because the financial transaction was proved to be non-existent or false, but purely on account of technical prosecution shortcomings and evidentiary lacunae specifically, the failure of the prosecution to send the original MIS passbooks for expert handwriting examination, the non-production of primary institutional transaction records, and the omission to examine high-ranking postal officials who could legally establish direct penal accountability of the petitioner under Section 409 IPC. 23. Seizing upon this acquittal, the learned counsel for the petitioner has pleaded that the criminal court's finding of non-proof in the IPC case cuts the very ground from under the feet of the Section 138 proceedings, rendering the cheque a mere ....
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....istent. 26. Furthermore, it is an elementary axiom of criminal jurisprudence that the standard of proof, rules of evidence, and objectives governing a trial under the IPC are vastly different from those governing a summary trial under the N.I. Act. An acquittal in a criminal case under Sections 409/420 IPC on a finding that the prosecution failed to prove the specific ingredients of criminal breach of trust or cheating beyond reasonable doubt under the strict standards of criminal law does not constitute a judicial declaration that no financial transaction ever took place, nor does it invalidate a distinct civil-commercial liability or a negotiable instrument issued for consideration. To hold that an acquittal in an IPC cheating case automatically nullifies a cheque bounce case would introduce a dangerous absurdity into commercial law, enabling dishonest drawers to escape summary liability simply because the police or the prosecution failed to dot their 'i's' and cross their 't's' in a separate, unrelated criminal trial. 27. Both the learned Trial Court and the First Appellate Court correctly appreciated this legal distinction. The appellate court rightly noted that t....
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....ce of probabilities. The accused can either directly adduce evidence to prove that the debt or liability did not exist, or rely upon the materials brought on record by the complainant himself to create a tangible and reasonable doubt in the mind of the court regarding the existence of the presumed liability. However, a "probable defence" cannot be raised on the bedrock of vague, bare denials, fanciful hypotheses, or uncorroborated oral assertions. There must be some material, circumstance, or consistent line of defence that lends credence to the version put forward by the accused. 31. Let me examine the nature of the defence set up by the petitioner in the present case. Throughout the trial and during his examination under Section 313 of the Cr.P.C., the petitioner did not adduce a single shred of independent defence evidence (D.W.). He chose not to examine any witness, nor did he enter the witness box himself as a witness on oath under Section 315 Cr.P.C. or subject himself to cross-examination. Instead, his entire defence rested on a solitary, sweeping ipse dixit statement that when he had visited the State Bank of India branch at Bankura to withdraw a nominal sum of Rs.300/-,....
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....hat a bare, uncorroborated statement under Section 313 Cr.P.C. regarding a "snatched cheque book," unsupported by any contemporaneous police G.D., FIR, or bank intimation, falls woefully short of establishing a probable defence on a preponderance of probabilities. The second question is accordingly answered in negative, against the petitioner. 35. Moving on to the third question for determination, I must now examine clause (b) to the Proviso appended to Section 138 of the N.I. Act, which stipulates that the payee or holder of the cheque must make a demand for the payment of the said amount of money by giving a notice in writing, within thirty days of the receipt of information by him from the bank regarding the return of the cheque as unpaid. Furthermore, clause (c) to the said Proviso mandates that to attract liability under Section 138, the drawer of such cheque must fail to make the payment of the said amount of money to the payee within fifteen days from the date of receipt of the said notice. The service of a statutory demand notice is a mandatory condition precedent for instituting a complaint under Section 138; however, the law has also evolved practical safeguards to ens....
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....ording him an opportunity to liquidate the liability and escape prosecution. 39. Applying this binding principle to the facts of the case at hand, we find that the petitioner's plea of non-service collapses on two distinct counts: Firstly, the petitioner failed to bring on record any concrete, contemporaneous institutional or documentary proof demonstrating that he was actually incarcerated inside a correctional home on the exact date postal delivery of the demand notice was attempted. Furthermore, the address to which the notice was dispatched matched the permanent and correct address furnished by the petitioner himself in his official court bonds and proceedings. Secondly, even assuming arguendo that the postal envelope was returned or unclaimed due to his temporary absence, the petitioner undisputedly received the formal summons from the learned Trial Court along with a copy of the complaint. He had a clear statutory window of fifteen days from the date of receipt of the summons to pay the sum of Rs.8,00,000/-, which he completely ignored, choosing instead to contest the matter on technicalities. Under the mandate of C.C. Alavi Haji (supra), such failure....
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....al (P.W. 2) alongside the unimpeachable documentary evidence namely the cheque (Exhibit 1), the bank return memo (Exhibit 3), the statutory demand notice with postal receipts (Exhibits 4, 4a, 4b), and most importantly, the written declaration and notarized agreement executed by the petitioner himself (Exhibits 6 and 7) returned a clear, reasoned finding of guilt. This finding was subsequently re-evaluated, scrutinized, and affirmed in its entirety by the First appellate court. 44. Search as I must through the records, I am unable to trace any patent perversity, arbitrary exercise of judicial discretion, or glaring legal infirmity in the concurrent findings arrived by the said Courts. The defence sought to be raised was a fragile construct built upon an uncorroborated statement under Section 313 Cr.P.C. regarding a "snatched cheque book" and an attempt to exploit an acquittal in a separate, technical IPC trial, both of which have been thoroughly dismantled through established legal principles in the preceding discussions. There being no procedural miscarriage or error of law, the foundational basis for invoking our extraordinary supervisory jurisdiction stands completely eliminat....