Calcutta High Court (Appellete Side)
Sudipta Ghosh vs Tapas Pal on 6 August, 2025
2025:CHC-AS:1478
IN THE HIGH COURT AT CALCUTTA
CRIMINAL REVISIONAL JURISDICTION
Appellate Side
Present:
The Hon'ble Justice Ajay Kumar Gupta
C.R.R. 4611 of 2022
With
CRAN 2 of 2024
Sudipta Ghosh
Versus
Tapas Pal
For the Petitioner : Mr. Anirban Tarafder, Adv.
Mr. Daniel Sarkar, Adv.
Mr. Arnab Nandi, Adv.
For the Opposite Party : Mr. Sourav Mondal, Adv.
Mr. Rony Mondal, Adv.
Mr. Arijit Bhuiya, Adv.
Heard on : 17.06.2025
Judgment on : 06.08.2025
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Ajay Kumar Gupta, J:
1.
The petitioner being the accused in connection with Case No.
CS/6463/06 initiated under Section 138 of the Negotiable
Instruments Act, 1881 (in short ‘N.I. Act‘) assailed the impugned
order dated 30.11.2022 passed by the Learned Metropolitan
Magistrate, 16th Court at Calcutta.
2. By the said impugned order, the Learned Magistrate rejected
the petitioner’s prayer to send the Trade Licence issued in favour of
opposite party – Tapas Pal, Proprietor of M/s. Ashray by Bally
Municipality to the CFSL for examination to ascertain its
genuineness.
3. The background facts of the case of the petitioner are that
the opposite party filed a petition of complaint under Section 200 of
the Code of Criminal Procedure, 1973 (in short ‘CrPC‘) before the
Learned Chief Metropolitan Magistrate, Calcutta, against the present
petitioner alleging commission of offence punishable under Section
138 of N.I. Act for issuing a cheque in favour of M/s. Ashray in
discharge of legally enforceable debts and/or liabilities being Cheque
No. 901536 dated 27.03.2006 for a sum of Rs. 5,00,000/- (Rupees
Five Lakhs Only), drawn on Union Bank of India, Ezra Street Branch,
Kolkata 700 001. However, upon depositing the said cheque within
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the period of its validity by the opposite party with his banker,
namely, UTI Bank Ltd., Konnagar Branch, Hooghly, 712 235 for
encashment on 09.05.2006, the said cheque was dishonoured on the
ground of “Insufficient Funds” and was returned on 13.05.2006.
Thereafter, all procedural requirements under the Act were duly
followed prior to the filing of the said case when the petitioner failed
to pay the said amount.
4. During trial, three witnesses have been examined as P.Ws. 1,
2 and 3 who deposed and exhibited number of documents in support
to prove the case of the opposite party/complainant. However,
complainant could not produce the Trade Licence before. Upon recall
of the witness, a Trade Licence dated 08.11.2005 issued by Bally
Municipality for the year 2003-2004, was produced and marked as
Exhibit 8 without any objection.
5. Despite the said fact, the Petitioner filed an application dated
22.06.2022 for expunging the said Exhibit 8, but the prayer was
rejected by the Learned Magistrate vide Order dated 3 rd August, 2022
on the ground that the document was exhibited without objection
after recall of witness and sufficient opportunity for cross-
examination was afforded. Subsequently, petitioner filed another
application on 16.11.2022 with a prayer that the document marked
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as Exhibit 8 appears to be not genuine and the same should be sent
to the CFSL for examination at the cost of the petitioner.
6. Upon hearing the parties, the prayer was rejected by the
Learned Magistrate on 30.11.2022 on the ground that subsequent
application filed by the petitioner only with the intention to re-open
the issue on the ground of suspicion and CFSL examination is an
indirect attempt to revisit the earlier rejection. Hence, this
application.
SUBMISSION ON BEHALF OF THE PETITIONER:
7. Learned counsel appearing on behalf of the petitioner
vehemently advanced arguments and submitted that the petitioner
has challenged that the claim of the opposite party to be the holder in
due course of the cheque in question. His status as the proprietor in
M/s. Ashray is also under challenge. The petitioner is in no way
connected or related with M/s. Ashray. He was unable to produce
any document to prove his status as the proprietor of M/s. Ashray at
the initial deposition. But, subsequently, on recall of the witness, a
Trade Licence dated 08.11.2005 issued by Bally Municipality for the
year 2003-2004 was exhibited to support the contention that he is
proprietorship of M/s. Ashray is fabricated. The said Trade Licence
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was not confirmed by D.W. 1 who was examined by the petitioner to
rebut the opposite party’s claim.
7a. The D.W. 1, staff of Bally Municipality deposed during his
examination that he was the in charge of Licence Department on the
date of purported issuance of the Trade Licence. However, he could
not bring the Licence Register and other documents as sought for
because on 6th March, 2018 a fire broke out in the Office of Bally
Municipality and in the said fire, many documents of the department
were burnt. His deposition was recorded on 12 th April, 2022.
7b. It was further submitted that the Learned Magistrate failed
to appreciate that the opposite party/complainant failed to prove his
status as the proprietor of M/s. Ashray and has no locus standi to
file the complaint and whole case depends on the said Trade Licence.
Rejection of such prayer is bad in law or non-est in the eye of law as
the Learned Magistrate holds that the petition filed by the petitioner
is only to delay the trial of the proceeding without going into real
disputes and issues involved for the purpose of proper and effective
disposal.
7c. The learned counsel further submitted that if Exhibit 8
(Trade Licence) is found to be forged and not genuine after
examination by the CFSL then the same becomes in admissible in
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evidence and greatly effect the final conclusion of the trial. To bolster
his submission, he placed reliance of following judgments as under:-
i. S. Ravichandra Vs. M/s. Elements Development
Consultants, Bengaluru1 particularly paragraph no. 7;
ii. Kalyani Baskar Vs. M. S. Sampoornam2 particularly paragraph no. 11; iii. T. Nagappa Vs. Y. R. Muralidhar3 particularly in paragraph nos. 7 to 9; iv. A. Sivagnana Pandian Vs. M. Ravichandran4
particularly in paragraph nos. 18, 29 to 32).
7d. Finally, learned counsel prays for allowing the Revisional
application by directing that the Exhibit No. 8 may be sent to the
CFSL to ascertain whether the said Trade Licence is genuine or not
on the expenses of the Petitioner for ends of justice.
SUBMISSION ON BEHALF OF THE OPPOSITE PARTY:
8. Learned counsel appearing on behalf of the opposite party
vehemently raised objection of such prayer of the learned counsel
appearing on behalf of the petitioner and further submitted that the
instant Revisional application is filed only to delay the proceeding. All
1
2018 CrLJ (Kar) 4314;
2
2007 (1) SCC (CRI) 577 : AIRONLINE 2006 SC 318;
3
2008 AIR SCW 3349 : AIR 2008 SC 2010
4
2011 CRI. L.J. 4152 : (2011) 2 MAD LJ (CRI) 595.
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the witnesses have been examined by the Learned Trial Court. The
proceeding initiated under Section 138 of the N.I. Act is required to
be followed summary procedure. In such case, the petitioner is
required to prove the case of cheque issued in favour of the opposite
party/complainant in order to discharge legally enforceable debts
and/or liabilities and not to prove whether the Trade Licence is
genuine or not. Furthermore, the said document was exhibited as
Exhibit 8 by the Learned Trial Court after affording an opportunity of
cross-examination. The petitioner tried to stall the proceedings on
two occasions. Firstly, by filing application for expunging the Exhibit
No. 8 though it was exhibited in presence of both parties without
objection after leading evidence and secondly, he tried to send the
Trade licence for CFSL examination but he could not succeeded.
Moreover, the Bally Municipality did not deny and raised any
objection regarding Trade licence issued in favour of the M/s Ashray.
The case is pending before the trial court since 2006. Therefore, the
Revisional application is liable to be dismissed.
DISCUSSION , FINDINGS AND CONCLUSION OF THIS COURT:
9. Heard the arguments advanced and submissions made by the
learned counsels appearing on behalf of the parties and on perusal of
the records as well as impugned order, this Court finds the opposite
party/complainant has initiated a proceeding under Section 138 of
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the N.I. Act against the Petitioner. In such a proceeding, the essential
ingredients that must be proved are:-
(i) Whether the cheque was issued in order to
discharge legal debts and/or liabilities of the
accused person or not?
(ii) Whether it was drawn in favour of the
complainant?
(iii) Whether the cheque was presented to the bank
within its validity period?
(iv) Whether it was dishonoured due to insufficient
funds and other valid reasons and
(v) Whether despite receipt of the statutory notice,
the accused failed to make payment of cheque
amount?
These are the criteria necessary to establish the offence under
Section 138 of N.I. Act.
10. Moreover, at the time of the filing complaint, the complainant
specifically indicated in the cause title that he is the proprietor of
M/s. Ashray having its office at 12/1, Old G.T. Road, Bally, Howrah.
Initially, he could not produce any other relevant document to show
his proprietorship. But later, upon recall, the Trade Licence, issued
by the Bally Municipality was exhibited as Exhibit 8 without any
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objection even sufficient opportunity was provided to the petitioner to
cross-examine the witnesses.
11. All the P.Ws. and D.W. have already been examined and all the
relevant documents have been exhibited including the cheque, memo
of return, legal notice, trade licence etc. Even, the employee of the
Bally Municipality brought by the petitioner to challenge the
authenticity of the Trade Licence but he did not deny that the Licence
was not issued by Bally Municipality. He also did not question about
the genuineness of Trade Licence by the Municipality.
12. In addition, the petitioner herein filed two petitions. Firstly,
seeking expunging the Exhibit 8 and secondly, application for
requesting that the said document to be sent to the CFSL for forensic
examination at petitioner’s own cost. Both the prayers were rejected
after hearing the parties.
13. The Learned Trial Court while rejecting the said application,
rightly held that once a document already exhibited in presence of
both sides without objection is not necessary to be sent for expert
opinion before the CFSL to prove whether the said Trade Licence is
genuine or not, in the case initiated under Section 138 of N.I. Act. It
is not the case of the petitioner that he had not issued the cheque. He
only raised the issue with regard to proprietorship of the opposite
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party/complainant that issue will be decided by the Learned Trial
Court after going through the oral and documentary evidence of the
parties while assessing the whole evidence. The earlier petition filed
by the petitioner was rejected by the Learned Magistrate therefore,
subsequent application filed only with intention for re-opening the
issue on the ground of suspicion and CFSL examination is an indirect
attempt to revisit the earlier rejection order. The petitioner never
challenged the genuineness of cheque issued by him.
14. This Court relies a judgment passed in M.M.T.C. Ltd. &
Anr. Vs. Medchl Chemicals and Pharma (P) Ltd. & Anr. 5 where
the Hon’ble Supreme Court held that only eligibility criteria
prescribed by Section 142, of the N.I. Act for maintaining a complaint
under Section 138 is that the complainant must be the payee or the
holder in due course.
15. In another judgment passed in Rangappa Vs. Sri Mohan6
the Hon’ble Apex Court made it clear that once the issuance of the
cheque is admitted or proved, the Trial Court is duty bound to raise
the presumption that the dishonoured cheque placed before it was
5
(2002) 1 SCC 234;
6
AIR 2010 SUPREME COURT 1898, 2010 AIR SCW 2946.
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indeed issued in discharge of a legally enforceable debt or liability of
the amount mentioned therein.
16. The Judgements relied by the Petitioner do not support the
proposition that a Trade Licence must be sent for CFSL for forensic
examination as the proceeding is to be followed summary procedure
under Section 138 of the N.I. Act, particularly when the core elements
of the offence are not in dispute.
17. Therefore, this Court finds there is no any illegality, infirmity
or perversity in rejecting the prayer as made by the petitioner.
Therefore, the impugned order dated 30.11.2022 passed by the
Learned Metropolitan Magistrate, 16 th Court at Calcutta is hereby
affirmed.
18. Accordingly, CRR No. 4611 of 2022 is, thus, dismissed.
CRAN 2 of 2024 is also, thus, disposed of.
19. Let a copy of this Judgment be sent to the Learned Court
below for information.
20. Interim order, if any, stands vacated.
21. Case Diary, if any, be returned to the learned counsel for the
State.
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22. Parties shall act on the server copies of this Judgment
uploaded on the website of this Court.
23. Urgent photostat certified copy of this Judgment, if applied
for, is to be given as expeditiously to the parties on compliance of all
legal and necessary formalities.
(Ajay Kumar Gupta, J)
(P.A.)