Calcutta High Court (Appellete Side)
Shika Bhattacharjee vs Sanjib Das @ Bholau on 17 June, 2025
2025:CHC-AS:1043
IN THE HIGH COURT AT CALCUTTA
CRIMINAL APPELLATE JURISDICTION
APPELLATE SIDE
PRESENT:
THE HON'BLE DR. JUSTICE AJOY KUMAR MUKHERJEE
CRA 285 of 2019
Shika Bhattacharjee
Vs.
Sanjib Das @ Bholau
For the Appellant : Mr. Subhanwita Ghosh
For the respondent : Mr. Vivek Kumar Tripathi
: Mr. Partha Pratim Mukhopadhyay
Heard on : 25.03.2025
Judgment on : 17.06.2025
Dr. Ajoy Kumar Mukherjee, J.
1. The instant appeal has arisen against judgment and order dated 19th
November 2018 passed in complaint case no. 348C of 2015 by the learned
judicial magistrate 6th court Howrah. The trial court by the said impugned
judgement acquitted the accused in a proceeding under section 138 of the
Negotiable Instrument Act (in short N.I Act).
2. The complainant/appellant herein had preferred a complaint before
the trial court contending that the accused was milk man in the
complainant’s house. Due to urgent need of his business, the complainant
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and her husband gave Rs. 2,30,000/- to the accused on different occasion
between June 2005 to December 2005 on the assurance of the accused that
the same shall be returned within short span of time. The complainant’s
further case is that the said amount was given to the accused on good faith
and she noted all the dates on which she had paid the amount to said
accused in her daily note book, which has been marked as exhibit 9 in the
present case.
3. In discharge of his existing legal debts and/or liability, the accused in
the first week of 2007 issued two account payee post-dated cheques being
no 055459 dated 21.12.2007 for Rs. 1,50,000/- which is marked exhibit-1
and another cheque being no. 055460 dated 8.2.2008 for Rs. 80,000/-
which is marked as exhibit 2 in favour of the complaint. Thereafter the
complainant deposited the said account payee cheques with her banker but
both the cheques were dishonoured with the endorsement “account number
closed” and said cheque return memo dated 14.02.2008 and 16.02.2008 are
marked as exhibit 3 and 4. The complainant/appellant herein sent demand
notice under registered post with A/D card on 10.03.2008 and it was
received on behalf of the accused on 24.03.2008 and copy of said notice and
postal acknowledgment are marked exhibit 5, 5/1, 5/2. The allegation of the
complainant is that despite receipt of the legal notice, the accused failed to
pay the amount within the stipulated period and as such above mentioned
complaint case was initiated by the complainant on 30th April 2008. During
the course of trial, complainant examined herself as PW-1 and her husband
deposed as PW-3 and one dealing assistant of Kashundia Co. Operative
Bank has deposed has P.W-2. The accused/respondent was examined under
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section 313 Cr.P.C, where his only plea is that he is innocent. However the
accused did not adduce any evidence on his behalf.
4. By the impugned judgment and order dated 19.11.2018 the court
below acquitted the accused person mainly on the following grounds:-
i) Demand notice was not properly addressed and served upon the
addressee/Respondent since PW-1 also admitted that she does not
know the persons who received the demand notice.
ii) Exhibit 9 (Note Book of the complainant) bears lot of overwritings
which does not inspire confidence
iii) Exhibit 7 reflects that two different cheques were dishonoured
earlier before issuance of instant cheques in question
iv) Bank account of the accused became inoperative since 31.03.2006
while the cheque was allegedly issued on 21.12.2007 and
08.02.2008.
v) P.W-2, who is one of the dealing assistant of the Bank has not filed
any authorization certificate and as such his evidence cannot be
taken into consideration
vi) The complainant stated that the accused was a milk man but she
could not show any paper as to how she used to pay the cost of
milk every month and it has not been explained how the
complainant, who got married on 8.3.2005 had given loan to the
accused within a span of 3 months
vii) The trial court disbelieved exhibit 9 on various grounds out of
which one ground is that it is reflective from the Exercise Book that
the accused was paid only Rs. 8/- for the cost of milk on
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01.02.2005 but suddenly on and from 10.06.2005, the
complainant started giving hefty amount to the accused
viii) The complainant could not deposit the income tax return or
passbook showing that she had the available balance of
Rs.2,30,000/- for giving said amount to the accused towards loan
5. Being aggrieved by the aforesaid judgment of acquittal, Ms. Ghosh,
learned counsel appearing on behalf of the appellant argued that the court
below failed to understand that the presumption under sections 118 and
139 of the N.I Act clearly attracts in the present case and the court below
ought to have drawn the presumption that the cheques were issued for
consideration and until contrary is proved, such presumption would remain.
In the instant case except mere denial during cross examination of
complainant’s witness, nothing was brought on record by the accused to
dislodge the proof adduced by the complainant/appellant.
6. He further argued that the allegation of not showing the transaction in
question in the income tax return of the appellant concerned or not
producing the tax return, does not in any way rebut the presumption of the
existence of legally enforceable debt. He further contended that the court
below has refused to accept the evidentiary value of the testimony of P.W.-2
in the absence of authorization letter, but it appears that the court below
has passed the order of acquittal based on the documents and evidence
adduced by PW 2. He further contended that the accused despite receipt of
the legal notice, has intentionally chosen not to reply to the said legal notice
which makes it abundantly clear that the accused from the very inception
had no intention to clear his legally enforceable debt. He further contended
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that the accused has failed to bring on record any relevant material to rebut
the presumption or to show that the preponderance of such probabilities are
in favour of the accused. Infact the accused has miserably failed to raise any
probable defence which may create doubt about the existence of a legally
enforceable debt.
7. She further contended that the impugned order of acquittal of the
accused /respondent is a product of non application of judicial mind and as
such is liable to be set aside. The court below failed to appreciate and
consider the evidence adduced by the complainant and her witnesses in its
proper perspective and by acquitting the accused has committed grave error
in law. The court while passed the impugned judgment did not consider the
fact that the burden of proving non existence of legally enforceable debts
always lies on the accused/respondent herein. Therefore, mere inability on
the part of the complainant/appellant to produce any explicit loan
document cannot discharge the accused/respondent from his liability to
repay his debt, specially when complainant has proved the transaction
through exhibit-9. Accordingly complainant/appellant has prayed for setting
aside the order impugned and to convict the respondent and to award
sentence against him.
8. Mr. Tripathi learned Counsel appearing on behalf of the respondent
argued that the averments made in the complaint is the very foundation of
the instant case, which states that the appellant/PW-1 and her
husband/PW3 advanced the friendly loan to the accused opposite party but
said PW-3/husband of complainant in his deposition during the cross
examination clearly stated that the accused Sanjib Das @ Bholau is not his
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friend and thereby contradicted the case of the appellant. He further argued
that service of demand notice at the correct address of the accused is sine
qua non but in the instant case the notice under section 138 was not sent to
the correct address of the accused person. The appellant in her deposition
stated about her unawareness as to whether any notice under section 138 of
N.I. Act was served upon the accused.
9. Mr. Tripathy further argued that the appellant/complainant did not
have the financial capacity to advance the loan to the tune of Rs. 2,30,000/-
as she herself in her deposition stated that she earns only Rs. 20,000/- per
month. Therefore, the appellant did not show her capacity to give the said
amount to the accused and therefore, the appellant failed to make out the
existence of any legally enforceable debt which is quintessential for the
initiation of proceeding under section 138 of N.I. Act. The appellant during
her cross examination admitted that she does not know Ani Das in one
hand and on the other hand in para 6 of the complaint she stated that the
wife of the accused received the demand notice on 24.03.2018 and therefore,
the appellant failed to prove who has received the demand notice. He further
contended that the note book marked exhibit 9, allegedly written and
maintained by the appellant but it was not produced by the appellant
herself but by the husband of the appellant. In this context he further
argued that relevancy of a hand written note book can arise only in cases of
civil in nature but not in the criminal proceeding initiated under section 138
of the N.I. Act, where the complainant/ appellant has to discharge the
burden to show the existence of legally enforceable debt which the
complainant has failed to prove in the instant case, beyond reasonable
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doubt and in support of his argument he placed reliance upon M.D.
Thomas Vs. P.S. Jalil and another reported in (2009) 14 SCC 398 and
Shibu Chakraborty Vs. Smt. Arati Podder and another reported in 1995
0 supreme Cal 330
Decision
10. The record reveals that in the instant proceeding the complainant in
support of the advancement of amount of Rs. 2,30,000/- to the accused has
filed and proved the entry in the Exercise Book which is marked exhibit-9 in
the present case. PW-1/complainant has also stated during cross
examination that she does not maintain any balance sheet but she used to
maintain khata (Exercise Book). The trial court while passed the judgment
of acquittal disbelieved the entries in the said Exercise Book (marked
exhibit-9) on the ground that PW-1 in her evidence stated that she cannot
show any paper as to how she used to pay the cost of milk every month but
surprisingly the husband of the complainant in his examination in chief has
stated that complainant used to note down the amount giving as loan to the
accused in her copy, which strikes the mind of the trial court and prompted
him to disbelieve what is reflected in exhibit-9. He also failed to understand
in this context as to why the complainant suddenly started giving loan of
such huge amount to the accused, since the accused is neither the friend
nor colleague of her husband and specially when the amount was allegedly
advanced only three months after her marriage.
11. Needless to mention in this context that in the case of Kumar
Exports Vs. Sharma Carpets reported in (2009) 2 SCC 513, the supreme
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Court has made it clear that the accused in a trial under section 138 of the
Act has two options. He can either show that consideration or debt did not
exist or that under the particular circumstances of the case, the non-
existence of consideration and debt is so probable that a prudent man ought
to suppose that no consideration and debt existed. In such view of the
matter when the complainant has stated in her evidence during cross
examination that she does not maintain any balance sheet but she maintain
khata (Exercise Book) and when no cross examination has been offered on
that point by the accused and thereafter when PW3 who is the husband of
the complainant, has deposed on behalf of the complainant and had filed
and proved exhibit-9 i.e. the said Exercise Book, the accused had the only
option to prove the non-existence of such consideration or debt and/ or to
prove that under the particular circumstances of the case, the non-existence
of the consideration and debt is so probable that a prudent man ought not
to suppose that no consideration or debt existed.
12. Learned court below while passed the impugned judgment
unnecessarily laid emphasis on certain irrelevant considerations without
considering the fact that no challenge was offered regarding the entry or the
hand writing note in the Exercise Book, marked exhibit 9, except raising
objection at the time of marking said document as exhibit. However,
accused did not make minimum effort to substantiate as to why he raised
objection, while the said Exercise Book was admitted in evidence. Even
while the accused was examined under section 313 Cr.P.C. he has only
taken the plea of innocence and nothing further. In fact the court below
failed to consider that the question is whether or not the amount given to
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the accused was stated in the note book and that no challenge was offered
on behalf of the accused in noting the entry regarding the advancement of
said amount to the accused and that her version has been supported by
PW-3. Even it is not under challenge that the accused is a milk man by
profession and he had a transaction of selling milk at the house of the
complainant. There appears to be no challenge that the entries in exhibit-9
was not made on behalf of the complainant or that said entries are not
reflected true state of affair. In such circumstances there is no reason why
trial court laid much emphasis on over writing, if any, in the Exercise Book.
This finding about not placing reliance upon exhibit-9 is perverse, specially
when accused neither adduced evidence nor proved any document to rebut
the presumption raised by the complainant, in compliance with section 139
of the N.I. Act. Even the plea taken by the accused by way of putting
suggestion to PW-1 during cross examination that he used to visit husband
of complainant for writing of letters and filling of forms regarding hire
purchase of Maruti Car from City Corp. Finance, when some blank cheques
of the accused was stolen by the husband of the complainant, remained not
proved. Accused even failed to show that he had lodged any complaint
anywhere alleging that the complainant’s husband has stolen some blank
cheques from his cheque books.
13. The trial court on the basis of some irrelevant considerations like non
filing of income tax return by the complainant and the complainants alleged
inability to show that she had the means to advance the said amount and
that complainant herself had not proved the Exercise Book (marked exhibit
9) has just tried to create doubts about the authenticity of exhibit 9.
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Needless to say that mere creation of doubt by the court below regarding the
entry made in exhibit-9 is not sufficient to rebut the presumption as
envisaged under section 138 of the N.I. Act. The trial court by mere creation
of doubt about authenticity of exhibit-9 have proceeded on misplaced
assumption that by mere denial made by the accused during cross
examination of complainants witnesses or mere creation of doubt in the
mind of court, accused has sufficiently rebutted the presumption. In this
context the observation made by the supreme Court in Rohit bhai Jivan
lal Patel Vs. The State of Gujarat reported in (2019) 18 SCC 106, two
paragraphs can be profitable referred in order to come to a conclusion.
“21. On perusing the order of the trial court, it is noticed that the trial court
proceeded to pass the order of acquittal on the mere ground of “creation of
doubt”. We are of the considered view that the trial court appears to have
proceeded on a misplaced assumption that by mere denial or mere creation of
doubt, the appellant had successfully rebutted the presumption as envisaged
by Section 139 of the NI Act. In the scheme of the NI Act, mere creation of doubt
is not sufficient.
22. The result of discussion in the foregoing paragraphs is that the major
considerations on which the trial court chose to proceed clearly show its
fundamental error of approach where, even after drawing the presumption, it
had proceeded as if the complainant was to prove his case beyond reasonable
doubt. Such being the fundamental flaw on the part of the trial court, the High
Court cannot be said to have acted illegally or having exceeded its jurisdiction
in reversing the judgment of acquittal. As noticed hereinabove, in the present
matter, the High Court has conscientiously and carefully taken into
consideration the views of the trial court and after examining the evidence on
record as a whole, found that the findings of the trial court are vitiated by
perversity. Hence, interference by the High Court was inevitable; rather had to
be made for just and proper decision of the matter.”
14. In view of above it is clear that so far as the finding of the trial court
regarding the non-existence of legally enforceable debt, is perverse and is
not sustainable in the eye of law.
15. The other most important ground relied by the court below in support
of acquittal is that demand notice which is a pre-condition for invoking a
proceeding under section 138 (b), was sent in the address of ’19/2, Baisnab
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Para lane P.O. & P.S. Shibpur, Dist:- Howrah’. But the accused does not
reside at the address mentioned in the demand notice but he resides at ’19,
Baisnab Para Lane, P.O. & P.S. Shibpur, Dist-Howrah’ as appearing in
some of his documents. Complainant during her evidence has filed and
proved the A/D card bearing signature of Ani Das dated 24.03.2008 marked
exhibit 5/1 and also one certificate of posting mentioning address ’19/2,
Baisnab Para Lane which is marked exhibit-6. In the complaint the
complainant has specifically stated that Ani Das is the wife of accused
Sanjib das @ Bholau and the accused no where denied that the name of her
wife is Ani Das. Even accused did not specifically denied that he does not
reside in the address where the demand notice was sent. I have gone
through the trial court record and it appears that accused filed Vokalatnama
on 29.03.2010 where he mentioned his address as ’19/2 Baisnab para
lane, P.O. & P.S. Shibpur, Dist-Howrah’. It further appears that the same
accused filed bail bond for attendance on 02.02.2013 wherein also he has
mentioned his address as follows:-
“Sanjib Das @ Bholau Son of Late of Biswanath Das 19/2
Baisnab Para Lane, P.O. & P.S. Shibpur, Dist-Howrah”
Said bail bond was filed for attendance before officer in charge of police
station or court.
16. Most importantly summon of the instant complaint case was sent in
the same abovementioned address of 19/2 Baisnab Para Lane and it was
received by Ani Das, who after putting her signature had written the word
‘wife’ within bracket in the back side of the summon. Needless to say, after
receipt of such summon accused/respondent herein Sanjib Das @ Bholau
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appeared in the criminal proceeding and obtained bail. All the above-
mentioned documents which are available in the record are self explanatory
and there is no room to say by the accused or by the court below that
demand notice was sent on a wrong address or it was never served upon the
accused. In the above backdrop the finding of court below that complainant
failed to establish that demand notice was served upon the accused, as it
was sent in a wrong address, is clearly perverse and not based on the
materials available in record. On the contrary knowing fully well that his
account became inoperative on and from 31.03.2006, accused had issued
the cheque in favour of the complainant which conduct and motive of the
accused shows the malafide intention of the accused to cheat the
complainant from the very inception.
17. In such view of the matter and on the basis of materials available in
the case record and even keeping in mind the limited scope of High Courts
interference in an appeal against acquittal, I have no other option but to say
that the judgment impugned is illegal and affected by not only error of law
but also error of fact and the view taken by the trial court is not a fairly
possible view on the basis of materials available on record and thereby
suffers from illegality and perversity.
18. In such view of the matter the Criminal Appel being CRA 285 of 2019
is allowed. Accused Sanjib Das @ Bholau is accordingly convicted for
committing offence punishable under section 138 of the N.I. Act and he is
sentenced to pay fine of Rs. 4,50,000/- within a period of 60 days from the
date of the order failing which the convict shall suffer simple imprisonment
for 6 (six) months. If the fine amount is paid by the convict as above, the
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said amount would be given to the complainant by way of compensation.
However, if the fine amount is not paid by the convict within the stipulated
period, the Trial Court shall take all steps including issuance of warrant of
arrest to ensure the attendance of convict before the court below to serve
out the sentence as awarded by this Court.
19. Return the trial court record at once to the court wherefrom it was
called for.
Urgent Xerox certified photocopies of this Judgment, if applied for, be given
to the parties upon compliance of the requisite formalities.
(DR. AJOY KUMAR MUKHERJEE, J.)
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