Shri Shyamal Halder v. Shri Nilay Banerjee

IN THE HIGH COURT AT CALCUTTA

CRIMINAL APPELLATE JURISDICTION CIRCUIT BENCH AT PORT BLAIR ....

PRESENT: THE HON'BLE JUSTICE JOYMALYA BAGCHI CRA(SB)/2/2023 SHRI SHYAMAL HALDER ...

APPELLANT VS.

SHRI NILAY BANERJEE ...

RESPONDENT For the Appellant : Mr. S.K.Golder For the State : Mr. K.Sabir Heard on : July 11, 2024 Judgment on : July 11, 2024 JOYMALYA BAGCHI, J.

1.

Appellant has assailed the judgment and order dated 29th December, 2022 passed by the Judicial Magistrate First Class Second Court, Port Blair in CR.No.125 of 2014/T.R.No.464 of 2014 acquitting the opposite party/accused from the accusation of commission of offence under section 138 of the Negotiable Instruments Act. 2.

The prosecution case against the opposite party/accused is as follows:

3.

Appellant is the proprietor of M/s A.S.Enterprises. It is alleged that in June 2013 the opposite party/accused approached the complainant and made an offer to sell the land bearing Survey No.145 measuring an area of 200 Sq.mtrs situated at Dollygunj Village, Port Blair. Appellant and his wife inspected the land and proposed to buy the same in the name of his wife. Accordingly, opposite party/accused offered to sell the land for Rs.13,00,000/- as sale consideration. The opposite party/accused called upon the appellant to pay an initial sum of Rs.3,40,000/- and it was agreed the balance amount of Rs.9,60,000/- shall be paid at the time of execution of sale deed. 4.

Accordingly, appellant paid a sum of Rs.40,000/- by cash on 08.06.2013 as part consideration and the opposite party/accused issued a receipt in the name of the wife of the appellant. Thereafter on 10.06.2013, a sum of Rs.3,00,000/- was paid by cheque issued by the appellant through its proprietorship concern bearing Cheque No.103081 drawn on State Bank of India, Rangat Branch and the said amount was duly deposited in the account of the accused. 5.

Despite payment of Rs.3,40,000/-, the accused did not make any endeavour to register the sale deed in favour of the wife of the appellant.

Whenever the appellant approached the opposite party/accused, he gave lame excuses and when he threatened to institute criminal proceeding for cheating, opposite party/accused

issued a cheque No.388397 dated 10.08.2014 drawn on State Bank of India, Junglighat Branch, Port Blair in favour of the appellant's proprietorship concern. The cheque upon being presented was returned unpaid with the remark "Funds insufficient". 6.

A demand notice was issued upon the opposite party/accused to pay the amount of the dishonoured cheque but in spite of receipt of said notice, the amount was not paid. Accordingly, the complaint was instituted against the opposite party/accused under section 138 of the Negotiable Instruments Act.

7.

During trial appellant and his wife submitted affidavit evidence in chief and were cross examined. No one was examined on behalf of the opposite party/accused.

8.

Trial Judge, by the impugned judgment, acquitted the opposite party/accused, inter alia, on the ground that the appellant was not the proprietor of M/s A.S.Enterprises.

9.

Mr.Goldar for appellant contends the uncontroverted evidence on record shows that he is the proprietor of M/s A.S.Enterprises i.e. the payee and had filed the complaint in such capacity. No crossexamination was made on behalf of the opposite party/accused to improbabilise this fact. In reply, Mr. Sabir contends no document had been filed to show that the appellant is the proprietor of M/s

A.S.Enterprises. He further contends the cheque had not been issued in discharge of legally enforceable debt or liability to the proprietorship concern.

10.

I have considered the evidence on record. Averments in the petition of complaint and the affidavit evidence filed on behalf of the appellant unequivocally states that he is the proprietor of M/s A.S.Enterprises who is the payee of the dishonoured cheque. The assertion of the appellant that he is the proprietor of M/s A.S.Enterprises, was not disputed through cross-examination or by leading independent evidence on behalf of the opposite party/accused. 11.

A proprietorship concern is not an independent legal entity and acts through its proprietor. The complaint was filed by the appellant as the proprietor of M/s A.S.Enterprise in whose favour the cheque was issued. As the juristic entity of the proprietor and the concern are indivisible no separate resolution authorising the proprietor to represent the proprietorship concern is necessary. Under such circumstances, finding of the Trial Judge that appellant is not the properitor of the payee concerned is wholly without substance.

12.

The other issue raised by Mr.K.Sabir is that the cheque had not been issued against legally enforceably debt or liability. He strenuously argues M/s A.S.Enterprises had issued a cheque of Rs.3,00,000/- whereas the dishonoured cheque is of Rs.3,40,000/-.

An amount of Rs.40,000/- handed over in cash by the wife of the appellant cannot be treated as a legally enforceable liability towards the proprietorship concern. The argument is wholly fallacious. 13.

Averments in the complaint and the evidence on record show that the appellant had entered into an oral agreement with opposite party/accused to purchase an immovable property from the latter for a sale consideration of Rs.13,00,000/-. The purchase was to be made in the name of his wife. It was agreed an initial advance of Rs.3,40,000/- would be made and the remainder Rs.9,60,000/-would be paid on execution of sale deed. In terms of the oral agreement, appellant handed over Rs.40,000/- in cash and a cheque of Rs.3,00,000/- issued by his proprietary concern M/s A.S.Enterprises to the opposite party/accused. As the sale was to be in the name of his wife, the receipt of Rs.40,000/- had been made in her name. 14.

Opposite party/accused did not act in terms of the agreement and when the appellant approached him he issued a cheque of Rs.3,40,000/- in favour of the appellant's proprietorship concern to refund the advance made in connection with the aforesaid transaction. 15.

Aforesaid materials on record clearly establish the dishonoured cheque was issued to refund the advance made by the appellant partly in cash and partly by way of a cheque issued through his proprietorship concern.

16.

In such view of the matter, I am unable to accept that the dishonoured cheque was not issued against legally enforceable debt or liability. Furthermore, opposite party/accused has not adduced any evidence to show that the aforesaid liability had being liquidated or adjusted to rebut the statutory presumption under section 139 of the Negotiable Instruments Act.

17.

Authorities relied upon by the opposite party/accused are inapplicable in the facts of the case.

18.

In Pawan Garg vs. State of U.P and another 1 proceeding against the husband was quashed as the dishonoured cheque was issued by the wife through her proprietorship concern. In the present case, the appellant had advanced money in cash and in cheque through his proprietorship concern. The advanced sum was sought to be refunded through the dishonoured cheque.

19.

M/s Precision Processor (India ) Private Limited vs. Bank of India2 deals with the issue whether a person is a holder in due course against valuable consideration. In the present case the appellant made an advance in cash and by way of cheque through his proprietorship concern. The advance was sought to be refunded by issuing the dishonoured cheque in the name of proprietorship 1 2023 0 Supreme (All) 347 2 2016 0 Supreme (Cal) 742

concern. Appellant has unequivocally averred both in the complaint as well as in his evidence that he is the proprietor of the said concern. The proprietorship concern is the payee and the appellant as it's proprietor was entitled to institute the proceeding against the opposite party/accused.

20.

For the aforesaid reasons, I set aside the judgment and order of acquittal and convict the opposite party/accused for commission of offence under section 138 of Negotiable Instruments Act. 21.

Coming to the issue of sentence, I note the cheque was dishonoured in the year 2013 and the matter has lingered on for more a decade.

22.

Under such circumstances I am of the considered view this is not a fit case to extend the benefit of the Probation of Offenders Act to the convict. On the other hand, appropriate and proportionate sentence ought to be imposed and the loss suffered by the appellant be compensated therefrom.

23.

Accordingly, I direct opposite party/accused shall suffer rigorous imprisonment for one year and to pay fine of Rs.6,80,000/- in default to suffer rigorous imprisonment for four months. Fine amount, if realised, shall be paid to the complainant as compensation.

24.

Opposite party/accused forthwith shall surrender before the learned Trial Court to undergo the substantive sentence and pay the fine amount failing which trial court shall issue appropriate process for execution of the sentence in accordance with law. 25.

The appeal is allowed.

26.

Let a copy of this judgment along with the lower court records be forthwith sent down to the trial court at once. 27.

Photostat certified copy of this judgment, if applied for, shall be made available to the appellant within a week from the date of putting in the requisites.

(Joymalya Bagchi, J.)