Calcutta High Court (Appellete Side)
M/S. Merck Ltd. & Anr vs Radha Nath Nandi on 25 August, 2017
Author: Joymalya Bagchi
Bench: Joymalya Bagchi
1
C.R.R. 3950 of 2016
21 25.08.2017
rkd Ct. No.28 (CRAN 3306 of 2017) M/s. Merck Ltd. & Anr.
-vs-
Radha Nath Nandi Mr. S. Ganguly, Mr. A. Bhattacharjee, Mr. C. Fernandez, Mr. A. Datta ....for the petitioner.
Mr. Radha Nath Nandi .... opposite party ( In person).
The matter is taken up for final hearing on the consent of the parties.
Proceeding in Complaint Case No.727 of 2015 under Section 138 of the N.I. Act pending before the court of learned Additional Chief Judicial Magistrate at Bidhannagar, North 24- Parganas and all orders passed therein have been assailed by the petitioner inter alia on the ground that the cheque was never presented for encashment before the drawee bank and therefore the penal of liability under Section 138 of the N.I. Act can be said to be attracted in the facts of the case.
Mr. Ganguly, learned senior counsel along with Mr. Bhattacharjee, learned counsel drew my attention to the averments in the petition of complaint wherein it is stated that the cheque was returned on March, 2013 with the endorsement that the "account name & cheque name differs/no fund". It has further submitted that in response to the notice of dishonour such fact was reiterated to the opposite party /complainant but he did not take any steps in the matter. It has also been submitted with reference to annexures in the supplementary affidavit that dues of the opposite party have since been cleared.
The opposite party appears in person. He has filed the 2 vacating application in terms of leave granted by the Apex Court vide dated 14.7.2017 in SLP (C)19634/2016. He submits that the endorsement in the return memo is an incorrect one as there is no divergence in the name of the payee and the account name maintained with his banker. over such issue, he insisted proceedings against his banker before the consumer court and order has been passed against the bank for deficiency of services. It is further submitted that the payments made to by the petitioner are in relation to the civil proceeding and would not affect the merits to the criminal trial as the value of dishonoured cheque had not been paid within the stipulated time upon receipt of notice of dishonour. It is also submitted that the petitioners were fully aware of his name as he was their former employee and had intentionally not written his full name as payee in the body of the cheque in order to harass him.
I have considered the rival submissions of the parties. Section 138 of the N.I. Act, inter alia, makes the dishonour of a cheque punishable in law provided the cheque upon presentation for encashment before the bank on which it is drawn is returned unpaid due to insufficiency of funds and the drawer of the cheque upon receipt of notice of dishonour does not pay the value of the dishonoured cheque within the stipulated time. Hence, condition precedent for attracting penal liability under the aforesaid provision is that the cheque must be presented for encashment to the drawer bank In Shri Ishar Alloy Steel Ltd. -vs- Jayaswals Neco Ltd. (2001) 3 SCC 609, the Apex Court held the cheque must be presented before the bank on which it is drawn within 6 months in order to attact penal liability under Section 138 of N.I. Act. It appears 3 from a reading of the petitioner's complaint particularly paragraph 7 thereof that the cheque was presented before the banker of the opposite party/complainant, namely, Canada Bank, Lake Town Branch who returned the same with the endorsement "account name & cheque name differs/no fund". There is nothing in the length and breadth of the petition of complaint that the cheque had been presented for encashment before the bank of the petitinoer on which it was drawn. Hence, the ingredients of the alleged offence is not disclosed from the uncontroverted allegations in the complaint.
Moreover, documents placed before the learned Magistrate at the time of issuance of process, namely, the cheque and the return memo reinforces the aforesaid contention that the cheque had been returned by the bank of the opposite party, as aforesaid, without presenting the same for clearance before the bank of the petitioner. Under such circumstances, the opposite party has strenuously argued that such conduct of his banker is actuated with fraud and is a collusive one. Whether or not such allegation is true or not, is not germane to decide the legality of the prosecution under Section 138 of the N.I. Act as the uncontroverted materials particularly the averments in the petition of complaint and the materials in support thereof leaves no doubt in ones mind that the cheque in question had never been placed or encashed before the bank on which it was drawn - a prerequisite to attract penal liability under the Act.
On the other hand, the cheque had been returned to the opposite party by his own banker with the aforesaid endorsement. If a cheque is returned by the banker of the opposite party without presenting the same before the bank on 4 which it is drawn for encashment, the question of dishonour of the cheque due to insufficiency of funds in the drawee's account shall not rise at all. It is pertinent to note that there is some controversy with regard to the endorsement "no funds"
in the return memo of the cheque. While opposite party has claimed that such endorsement was made by his banker, the said banker in a letter dated 14.8.2013 has, however, stated that it was not endorsed by them. Without going into the said controversy and even admitting that the said endorsement was made by the banker of the opposite party, I am of the opinion that since the cheque had not been presented for clearance with the banker of the petitioner the question of dishonour due to insufficiency of funds in the account of the petitioner did not arise. This is further fortified by the certificate issued by the petitioner's banker that he had sufficient amount in his account at all material points of time when the presentation was made. In view of the aforesaid facts, I am of the opinion that the ingredients of the alleged offence is not made out in the factual matrix of the case and the impugned proceeding is an abuse of the process of Court and is accordingly quashed.
I, however, make it clear that I have not expressed any opinion with regard to the alleged grievance of the petitioner that his banker had acted in collusion with the petitioner or with regard to his other claims which are pending adjudication before the Apex Court in SLP(C)19634 of 2016.
Accordingly, the petition along with application is disposed of.
Certified copy of this order, if applied for, be given to the parties on priority basis.
(Joymalya Bagchi, J.) 5