# Bijoy Kumar Moni v. Paresh Manna & Anr

- **Citation:** 2024 INSC 1024
- **Court:** Supreme Court of India
- **Decided:** 2024-12-20
- **Case number:** Criminal Appeal No. 5556 of 2024
- **Bench:** J.B. Pardiwala, R. Mahadevan
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/bijoy-kumar-moni-v-paresh-manna-anr-37416
- **Pages:** 51

## Headnote

The dishonoured cheque in question was signed by respondentaccused, in his capacity as Director and Authorised Signatory of the
Company Shilabati Hospital Pvt. Ltd., on the account maintained
by the Company with Standard Chartered Bank. By the impugned
order, the High Court acquitted respondent-accused of offence
punishable u/s.138 of Negotiable Instruments Act, 1881 holding
that in absence of the company being arraigned as an accused, the
complaint against the respondent-accused was not maintainable;
whether the High Court committed any error in passing the
impugned order is the question for determination.
Headnotes†
Negotiable Instruments Act, 1881 - ss.138, 139 and 141 -
Dishonour of Cheque - Cheque issued on behalf of company
by its authorised signatory - Whether prosecution could
not proceed against such authorised signatory, unless the
company was arraigned as an accused - Whether prosecution
could proceed against the accused in his personal capacity -
Whether benefit of exception embodied in doctrine of lex non
cogit ad impossibilia could be extended to the complainant:
Held:1. Although it can be understood that the complainant had
no occasion to believe that the cheque was drawn upon the bank
account of Shilabati Hospital as the debt was one which was taken
by the accused in his personal capacity, yet a bare perusal of the
cheque shows that the cheque was signed by the accused in the
capacity of the Director of the Shilabati Hospital Pvt. Ltd. as the
same bears both the stamp of the director as well as the hospital - In
case of a cheque issued on behalf of a company by its authorised
signatory, prosecution cannot proceed against the such authorised
signatory or other post-holders of the company as described under
*Author
[2024] 12 S.C.R.
1947
Bijoy Kumar Moni v. Paresh Manna & Anr.
Section 141 of the NI Act, unless the company who is the drawer
of the cheque is arraigned as an accused in the complaint case
filed before the magistrate - Further, vicarious liability can only
be affixed against the directors, authorised signatories, etc. of the
company after the company is held liable for the commission of
offence under Section 138. [Paras 49, 50]
2.1. It is the case of the complainant that the cheque was issued
in discharge of the personal liability of the accused towards the
complainant, and hence there was no occasion for it to implead the
company as an accused - However, even if the cheque might have
been issued for the discharge of personal liability of the accused
towards the complainant, had the company Shilabati Hospital Pvt.
Ltd. been arraigned as an accused in the complaint case before
the Trial Court, it would have remained open to the complainant to
establish with the aid of the presumption under Section 139 that
the cheque issued by the company was in discharge of a legally
enforceable debt - However, in the absence of the drawer of the
cheque having been arraigned as an accused, it was rightly held by
the High Court that no prosecution could have proceeded against
the accused in his personal capacity - The only way by which the
accused could be held liable was under Section 141 of the NI Act,
however the same could not have been done in the absence of
the company being arraigned as an accused. [Paras 51, 55]
2.2. As specified in a three-Judge Bench decision in Aneeta Hada,
the only exception to the above general rule is embodied in the
doctrine of lex non cogit ad impossibilia which means that the law
doesn't compel the impossible - Thus, it is only in those cases
where the impleadment of the company is not possible due to
some legal impediment that this general rule can be exempted -
In the facts on hand, it cannot be said that there was any legal
difficulty in impleading Shilabati Hospital Pvt. Ltd. as an accused
in the complaint case filed by the complainant - Thus, even the
benefit of the exception cannot be extended to the complainant
in the present case. [Para 56]
3. It is the drawer Company which mus

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[2024] 12 S.C.R. 1946 : 2024 INSC 1024
Bijoy Kumar Moni
v.
Paresh Manna & Anr.
(Criminal Appeal No. 5556 of 2024)
20 December 2024
[J.B. Pardiwala* and R. Mahadevan, JJ.]
Issue for Consideration
The dishonoured cheque in question was signed by respondentaccused, in his capacity as Director and Authorised Signatory of the
Company Shilabati Hospital Pvt. Ltd., on the account maintained
by the Company with Standard Chartered Bank. By the impugned
order, the High Court acquitted respondent-accused of offence
punishable u/s.138 of Negotiable Instruments Act, 1881 holding
that in absence of the company being arraigned as an accused, the
complaint against the respondent-accused was not maintainable;
whether the High Court committed any error in passing the
impugned order is the question for determination.
Headnotes†
Negotiable Instruments Act, 1881 - ss.138, 139 and 141 -
Dishonour of Cheque - Cheque issued on behalf of company
by its authorised signatory - Whether prosecution could
not proceed against such authorised signatory, unless the
company was arraigned as an accused - Whether prosecution
could proceed against the accused in his personal capacity -
Whether benefit of exception embodied in doctrine of lex non
cogit ad impossibilia could be extended to the complainant:
Held:1. Although it can be understood that the complainant had
no occasion to believe that the cheque was drawn upon the bank
account of Shilabati Hospital as the debt was one which was taken
by the accused in his personal capacity, yet a bare perusal of the
cheque shows that the cheque was signed by the accused in the
capacity of the Director of the Shilabati Hospital Pvt. Ltd. as the
same bears both the stamp of the director as well as the hospital - In
case of a cheque issued on behalf of a company by its authorised
signatory, prosecution cannot proceed against the such authorised
signatory or other post-holders of the company as described under
*Author
[2024] 12 S.C.R.
1947
Bijoy Kumar Moni v. Paresh Manna & Anr.
Section 141 of the NI Act, unless the company who is the drawer
of the cheque is arraigned as an accused in the complaint case
filed before the magistrate - Further, vicarious liability can only
be affixed against the directors, authorised signatories, etc. of the
company after the company is held liable for the commission of
offence under Section 138. [Paras 49, 50]
2.1. It is the case of the complainant that the cheque was issued
in discharge of the personal liability of the accused towards the
complainant, and hence there was no occasion for it to implead the
company as an accused - However, even if the cheque might have
been issued for the discharge of personal liability of the accused
towards the complainant, had the company Shilabati Hospital Pvt.
Ltd. been arraigned as an accused in the complaint case before
the Trial Court, it would have remained open to the complainant to
establish with the aid of the presumption under Section 139 that
the cheque issued by the company was in discharge of a legally
enforceable debt - However, in the absence of the drawer of the
cheque having been arraigned as an accused, it was rightly held by
the High Court that no prosecution could have proceeded against
the accused in his personal capacity - The only way by which the
accused could be held liable was under Section 141 of the NI Act,
however the same could not have been done in the absence of
the company being arraigned as an accused. [Paras 51, 55]
2.2. As specified in a three-Judge Bench decision in Aneeta Hada,
the only exception to the above general rule is embodied in the
doctrine of lex non cogit ad impossibilia which means that the law
doesn't compel the impossible - Thus, it is only in those cases
where the impleadment of the company is not possible due to
some legal impediment that this general rule can be exempted -
In the facts on hand, it cannot be said that there was any legal
difficulty in impleading Shilabati Hospital Pvt. Ltd. as an accused
in the complaint case filed by the complainant - Thus, even the
benefit of the exception cannot be extended to the complainant
in the present case. [Para 56]
3. It is the drawer Company which must be first held to be the
principal offender under Section 138 of the NI Act before culpability
can be extended, through a deeming fiction, to the other Directors
or persons in-charge of and responsible to the Company for the
conduct of its business - In the absence of the liability of the drawer
Company, there would naturally be no requirement to hold the other
persons vicariously liable for the offence committed under Section
1948
[2024] 12 S.C.R.
Supreme Court Reports
138 of the NI Act - It is only the drawer of the cheque who can
be held liable for an offence under Section 138 of the NI Act - An
authorised signatory acting on behalf of the principal cannot be
said to be the "drawer" of the cheque "on an account maintained
by him with a banker" under Section 138. [Paras 62, 66]
4.1. In the case on hand, the accused was prosecuted in his
individual capacity and not in his capacity of being the Director of
the Shilabati Hospital Pvt. Ltd. Although it is undisputed that the
accused signed the cheque in question, yet as the cheque was
drawn not on an account maintained by him with a Banker but was
issued on an account maintained by the hospital, the requirement
of Section 138 of the Act cannot be said to have been complied
with. [Para 69]
4.2. It would have been altogether a different situation if the accused
was prosecuted in his capacity as a Director of the Shilabati
Hospital - In such a scenario, the cheque drawn by him on an
account maintained by the Company would have satisfied the
requirement of Section 138 of the Act but as the accused has been
proceeded against for an offence under Section 138 of the Act in
his individual capacity and inasmuch as the cheque dishonoured
for insufficiency of funds was drawn on the account maintained by
the Company, namely, Shilabati Hospital Pvt. Ltd., and not by the
accused herein, no offence could be said to have been committed
under Section 138 of the Act - The High Court rightly held that in
the absence of the principal offender having been arraigned as
an accused, prosecution for the commission of an offence under
Section 138 of the NI Act could not have proceeded against the
accused. [Para 70]
5.1. The requirement of Section 138 of the NI Act is that for
fastening criminal liability on the accused, the cheque which was
dishonoured for insufficiency of funds etc., must have been drawn
on an account maintained by the accused - The mere fact that
the cheque signed by the accused in his capacity as a "Director"
of the Company would in the normal course be honoured by the
Bank to which it was presented does not satisfy the statutory
requirement of Section 138 of the Act. [Para 71]
5.2. Section 138 of the Act exposes the person who has drawn
the cheque and which has been returned for insufficiency of funds
to criminal liability - The provision, therefore, must be construed
strictly - However, such a strict construction should not result
[2024] 12 S.C.R.
1949
Bijoy Kumar Moni v. Paresh Manna & Anr.
in defeating the very purpose for which the provision has been
enacted - At the same time, the statutory provisions creating penal
liability cannot be stretched too far to embrace the persons and
situations patently excluded from its purview as discernible from
clear and unequivocal language used in the provision. [Para 72]
5.3. Section 138 of the NI Act clearly postulates that the cheque
returned for insufficiency of funds should have been drawn by a
person on an account maintained by him - It will amount to doing
violence to the language of the statute if Section 138 of the Act is
interpreted to mean that even if a person draws a cheque on an
account not maintained by him, he shall be liable if the cheque
is returned for insufficiency of funds - Such an interpretation will
lead to absurd and wholly unintended results. [Para 73]
5.4. However, the peculiar factual situation of the present case
and the plight of the complainant is not lost upon us - The option
of bringing civil action against the accused or the hospital will be
of no avail to the complainant as the claims are hopelessly time
barred - Further, it is also not open for the complainant to initiate
proceedings under Section 138 of the NI Act afresh by impleading
Shilabati Hospital Pvt. Ltd. as an accused as the time period
prescribed for issuance of statutory notice under Section 138 has
long expired. [Para 74]
5.5. It is trite law that an act may constitute an offence under more
than one statute - The encashment of the cheque for an amount of
Rs 7,00,000/- issued by the complainant in favour of the accused
[i.e. amount borrowed by him from the complainant] stood proved
during the course of the trial - Further, the conduct of the accused
in not replying to the statutory notice of dishonour of cheque issued
by the lawyer for the complainant and in not taking the plea of the
cheque having been drawn on the account of the company in his
capacity as a Director during the course of trial undoubtedly raises
questions as regards his dishonest intention in not repaying the
amount borrowed by him from the complainant. [Para 75]
5.6. In such circumstances, although it is not possible to hold the
accused liable for the offence under Section 138 of the NI Act,
yet the possibility of him having committed the offence of cheating
cannot be ruled out - Prima facie, the mens rea (guilty mind) of
the accused speaks for itself - It is left open to the complainant to
approach the jurisdictional police station and lodge an appropriate
1950
[2024] 12 S.C.R.
Supreme Court Reports
FIR against the accused - If the complainant lodges an FIR,
the concerned police officer in-charge of the police station shall
investigate the same in accordance with law. [Paras 76, 77]
Negotiable Instruments Act, 1881 - s.138 - Penal provision -
Has to be strictly construed:
Held: Section 138 of the NI Act being penal in nature has to be
strictly construed and advertence to the object behind its enactment
can only be made to supplement the language employed in the
text of the statute and not to supplant it or render it overly broad
and susceptible to misuse. [Para 68]
Negotiable Instruments Act, 1881 - ss.138 and 141 - Scope -
Liability and vicarious liability:
Held: It is only the drawer of the cheque who can be held liable
under Section 138 - Section 141 is an exception to this scheme
of the NI Act and provides for vicarious liability of persons other
than the drawer of the cheque in cases where the drawer of the
cheque under Section 138 is a corporate person. [Para 39]
Negotiable Instruments Act, 1881 - ss.7 and 138 - Expression
"on an account maintained by him with a banker" used in
s.138 - Meaning of:
Held: The expression describes the relationship between the
account holder and the banker - This relationship is fundamental
to the application of Section 138 - The act of maintaining an
account is exclusively tied to the account holder and does not
extend to any third party whom the account holder may authorize
to manage the account on its behalf - Therefore, any delegation
of authority to manage the account does not alter the intrinsic
relationship existing between the account holder and the banker
as envisaged under the NI Act. [Para 45]
Negotiable Instruments Act, 1881 - ss.7, 138 and 141 - Whether
authorized signatory of a company falls within the ambit of
the expression "drawer":
Held: Corporate persons like companies, which are mere legal
entities and have no soul, mind or limb to work physically, discharge
their functions through some human agency recognised under
the law to work - Therefore, if some function is discharged by
[2024] 12 S.C.R.
1951
Bijoy Kumar Moni v. Paresh Manna & Anr.
such human agency for and on behalf of the company it would
be an act of the company and not attributable to such human
agent - One such instance of discharge of functions could be the
authority to manage the bank accounts of the company, issue
and sign cheques on its behalf, etc. which may be delegated to
an authorised signatory - However, such authorisation would not
render the authorised signatory as the maker of those cheques -
It is the company alone which would continue to be the maker of
these cheques, and thus also the drawer within the meaning of
Section 7 of the NI Act - The authorised signatory is merely the
physical limb that signs and makes the cheque on behalf of the
company's incorporeal personality - The company, for all purposes,
continues to remain the drawer of the cheques. [Paras 45, 46]
Negotiable Instruments Act, 1881 - Cheque drawn upon a joint
account - Liability upon account holders of a joint account -
Discussed:
Held: A company vis-à-vis its authorised signatory stands on a
completely different footing as compared to account holders of a
joint account - In the former, it is only the company which holds an
account with the banker, whereas in the latter, each joint account
holder can be said to hold an account with the banker - Thus,
while in the case of a cheque drawn on the account of the company
the authorised signatory cannot be held to be the drawer, in the
case of a cheque drawn upon a joint account, each account holder
affixing his signature to the cheque may be said to have drawn
such a cheque. [Para 47]
Negotiable Instruments Act, 1881 - s.138 - "any debt or other
liability" appearing in s.138 of the Act - Scope of:
Held: Section 138 of the NI Act does not envisage that only
those cases where a cheque issued towards the discharge of the
personal liability of the drawer towards the payee gets dishonoured
would come within the ambit of the provision - The expression
"of any debt or other liability" appearing in Section 138 when read
with the Explanation to the provision is wide enough to bring any
debt or liability which is legally enforceable within its fold - Thus,
the requirement under the provision is that the debt or any other
liability has to be legally enforceable and the emphasis is not on
the existence of such debt or other liability between the drawer
and the payee - Even those cases where a person assumes the
1952
[2024] 12 S.C.R.
Supreme Court Reports
responsibility of discharging the debt of some other person, and in
furtherance thereof draws a cheque on an account maintained by
him, which subsequently gets dishonoured upon being presented
before the drawee, would be covered by Section 138 if the payee
is able to establish that there was some sort of an arrangement
by way of which the debt was assumed by the drawer. [Para 52]
Case Law Cited
P.J. Agro Tech Ltd. and Others v. Water Base Ltd. [2010] 9 SCR
119 : (2010) 12 SCC 146; Jugesh Sehgal v. Shamsher Singh
Gogi [2009] 10 SCR 857 : (2009) 14 SCC 683; Shri Gurudatta
Sugars Marketing (P) Ltd. v. Prithviraj Sayajirao Deshmukh
and Others [2024] 7 SCR 1211 : 2024 SCC OnLine SC 1800;
N. Harihara Krishnan v. J. Thomas [2017] 9 SCR 324 : (2018)
13 SCC 663; Aparna A. Shah v. Sheth Developers (P) Ltd.
[2013] 7 SCR 69 : (2013) 8 SCC 71; Anil Sachar and Another v.
Shree Nath Spinners Private Limited and Others [2011] 9 SCR
328 : (2011) 13 SCC 148; ICDS Ltd. v. Beena Shabeer and
Another [2002] Supp. 1 SCR 488 : (2002) 6 SCC 426; Aneeta
Hada v. Godfather Travels and Tours Private Limited [2012] 5
SCR 503 : (2012) 5 SCC 661; Anil Gupta v. Star India Private
Limited and Another [2014] 8 SCR 183 : (2014) 10 SCC 373;
Ashok Shewakramani and Others v. State of Andhra Pradesh
and Another (2023) 8 SCC 473; NEPC Micon Limited and
Others v. Magma Leasing Limited [1999] 2 SCR 932 : (1999)
4 SCC 253 - relied on.
Kusum Ingots & Alloys Ltd. v. Pennar Peterson Securities Ltd.
and Others [2000] 1 SCR 1120 : (2000) 2 SCC 745; Himanshu v.
B. Shivamurthy and Another [2019] 1 SCR 991 : (2019) 3 SCC
797; Mainuddin Abdul Sattar Shaikh v. Vijay D. Salvi [2015] 6
SCR 1033 : (2015) 9 SCC 622; Raghu Lakshminarayanan v.
Fine Tubes [2007] 4 SCR 885 : (2007) 5 SCC 103 - referred to.
P.N. Salim v. P.J. Thomas & Another, 2004 SCC Online Ker 269;
Hashmikant M. Seth v. State of Gujarat & Anr., 2004 SCC Online
Guj 300 - approved.
P. Sarvana Kumar v. S.P. Vijaya Kumar, 2022 SCC Online Mad
1387 - disapproved.
List of Acts
Negotiable Instruments Act, 1881.
[2024] 12 S.C.R.
1953
Bijoy Kumar Moni v. Paresh Manna & Anr.
List of Keywords
Section 138 of Negotiable Instruments Act, 1881; Dishonour of
Cheque; Vicarious liability; Company; Section 141 of Negotiable
Instruments Act, 1881; Section 139 of Negotiable Instruments
Act, 1881; Any debt or other liability; Debt; Drawer of the cheque;
Account maintained by him; Authorised signatory; Accused in his
personal capacity; Doctrine of lex non cogit ad impossibilia; Cheque
drawn upon a joint account.
Case Arising From
CRIMINAL APPELLATE JURISDICTION: Criminal Appeal No.
5556 of 2024
From the Judgment and Order dated 19.03.2024 of the High Court
at Calcutta in CRR No. 887 of 2019
Appearances for Parties
Uddyam Mukherjee, Swapnil Pattanayak, Agnibha Chatterjee,
Advs. for the Appellant.
Gaurav Kejriwal, Abhijit Sengupta, Navneet Singh, Kunal Chatterji,
Ms. Maitrayee Banerjee, Rohit Bansal, Ms. Mrinalini Mukherjee,
Advs. for the Respondents.
Judgment/Order of the Supreme Court
Judgment
J.B. Pardiwala, J.
For the convenience of exposition, the present judgment is divided
into the following parts:
INDEX*
A.
FACTUAL MATRIX .............................................................
2
i.
Proceedings before the Trial Court .............................
6
ii.
Proceedings before the Sessions Court ..................... 11
iii.
Proceedings before the High Court ............................. 16
*Ed. Note: Pagination as per the original Judgment.
1954
[2024] 12 S.C.R.
Supreme Court Reports
B.
SUBMISSIONS ON BEHALF OF THE APPELLANT /
COMPLAINANT ..................................................................
19
C.
SUBMISSIONS ON BEHALF OF THE RESPONDENT /
ACCUSED ...........................................................................
20
D.
ANALYSIS .......................................................................... 22
i.
Section 138 of the NI Act .............................................. 22
ii.
Whether authorized signatory of a company falls within
the ambit of the expression "drawer"? ............................
29
iii.
Meaning of the expression "on an account maintained
by him" used in Section 138 of the NI Act ........................
34
iv.
Scope of the expression "any debt or other liability"
appearing in Section 138 of the NI Act ...........................
40
v.
Section 141 of the NI Act ............................................. 48
E.
CONCLUSION ................................................................... 55
1.
Leave granted.
2.
This appeal arises from the judgment and order dated 19.03.2024
passed by the High Court at Calcutta in Criminal Revision No. 887 of
2019 by which the High Court allowed the criminal revision application
preferred by the respondent herein (original accused) and thereby
quashed and set aside the judgment and order of conviction passed
by the Trial Court and affirmed by the Sessions Court for the offence
punishable under Section 138 of the Negotiable Instruments Act,
1881 (for short, the "NI Act").
3.
For the sake of convenience, the appellant herein shall be referred
to as the complainant and the respondent herein shall be referred
to as the accused.
4.
Since these proceedings arise from a private complaint, the respondent
no. 2, that is, the State of West Bengal, although represented by Mr.
Kunal Chatterji, has no role to play.
[2024] 12 S.C.R.
1955
Bijoy Kumar Moni v. Paresh Manna & Anr.
A.
FACTUAL MATRIX
5.
The facts giving rise to this appeal may be summarised as under:
a.
The case of the complainant is plain and simple. According
to him, for the purpose of operating his trade loan account,
he would frequently visit the U.B.I. Raghunathpur Branch and
it is during one such visit sometime in the month of January,
2006 that he came to be introduced to the accused by one
Ashoke Mondal who was the Manager of the said branch.
Thereafter, the accused maintained amicable relations with
the complainant through telephonic conversations.
b.
In February 2006, the accused was in need of some financial
assistance and in such circumstances, he approached the
complainant with a request that a particular amount may
be lent to him with a promise to repay on demand.
c.
Accordingly, the complainant issued a bearer cheque for
an amount of Rs.7,00,000/- (Rupees Seven Lakh only)
which indisputably was encashed by the accused.
d.
Upon the complainant requesting the accused to repay
the amount referred to above, he issued a cheque dated
28.04.2006 drawn on the Standard Chartered Bank, N.S.
Road, Kolkata for the amount of Rs.8,45,000/- (Rupees
Eight lakh forty five thousand only). It is the case of the
complainant that Rs. 7,00,000/- was lent by him by way
of a bearer cheque and Rs. 1,45,000/- was subsequently
lent in cash. That is how the accused issued a cheque
of Rs. 8,45,000/- for the purpose of discharging his debt
towards the complainant.
e.
However, the said cheque was signed by him in his
capacity as a Director of Shilabati Hospital Pvt. Ltd. and
was drawn upon the bank account maintained in the name
of the hospital.
f.
There is a stamp of Shilabati Hospital Pvt. Ltd. on the
cheque and beneath the signature of the accused there
is a stamp of the Director.
g.
It is not in dispute that the cheque in question came to be
dishonoured for want of sufficient funds.
1956
[2024] 12 S.C.R.
Supreme Court Reports
h.
In such circumstances, the complainant issued a statutory
notice to the accused under Section 138 of the NI Act
dated 14.08.2006 calling upon him to make the payment
within 15 days of the receipt of the notice.
6.
The statutory notice referred to above is reproduced herein below:
"
DATE: 14/8/2006
To
Sri Paresh Manna
C/o SHILABATI HOSPITAL PVT. LTD.
P.O. CHATAL, Distt. Peschim Midnapur
Dear Sir,
Under the instructions of my client Sri Bijay Kumar Moni
son of Sri Mursrimohan Nond, resident of Raghunathpur,
P.O./P.S. Raghunathpur, Distt. Purulia. I do hereby serve
you this notice to the following effect.
That my client had been introduced to you by Sri
Achoke Mondal, Branch Manager United Bank of India,
Raghunathpur Branch some time in the month of February,
2008.
That my client was also informed by Sri Ashok Mondal
that you are contemplating to start a -Nursing Home with
huge investment at Raghunathpur.
That taking advantage of the said introduction by Sri
Ashok Mandal you - approached my client for a sum of
Rs. 8,45,000/- (eight lakhs forty five thousand) only to be
repaid within a very short period.
That my client very innocently acceded to your request and
arranged to handover a sum of Rs. 8,45,000/- (eight lakh
forty five thousand) out of the said sum of Rs. 7,00,000/-
(Seven lakhs) was given to you by my client through cheque
No. 951764 on his trade loan A/C maintained with U.B.I.
Raghunathpur Branch on 28.02.06 and the rest amount
was paid by my client to you in cash.
[2024] 12 S.C.R.
1957
Bijoy Kumar Moni v. Paresh Manna & Anr.
That you in discharge of your existing legal debts and
outstanding liabilities had issued A/C. payee cheque
No.997309 in favour of my client on 28.04.06 for Rs.
8,45,000/- (eight lakhs forty five thousand) against your
account maintained in standard chartered Bank, 19, N.S.
Road, Kolkata-700001. That as per your instruction my client
had presented the said cheque for encashment through his
banker, U.B.I. Raghunathpur Branch on 22.07.06.
That my client had received back the cheque refused by
you with the bank unpaid issue memo dated 27.07.06 that
the same has returned due to insufficient fund.
That as per instruction of my client I am sending this
demand notice to you with the intimation that you must
pay back to my client the sum of 8,45,000/- (eight lakhs
forty-five thousand) within 15 days from the date of receipt
of the notice, failing which my client will be constrained to
take recourse to law without any further intimation.
Thanking you,
Yours faithfully,
Sd/- Arun Kumar Moni
Advocate
Dt. 14-08-06"
7.
It is not in dispute that the accused upon receipt of the above notice
failed to give any appropriate reply to the complainant.
8.
In such circumstances, the complainant was left with no other
option but to file a private complaint in the Court of the A.C.J.M.
at Raghunathpur, District Purulia for the offence punishable under
Section 138 of the NI Act which came to be registered as Complaint
Case No. 39 of 2006.
i.
Proceedings before the Trial Court
9.
As the facts of this case are little peculiar, we deem it necessary to
reproduce the entire complaint as under:
"In the Court of the A.C.J.M. at Raghunathpur, District
Purulia.
Complaint Case No. 39 of 2006.
1958
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Bijoy Kumar Moni son of Sri Murari Mohan Moni, resident
of Raghunathpur, P.O. & P.S. Raghunathpur, Dist. Purulia.
...Complainant
-VersusParesh Manna son of not known c/o. Shilabati Hospital
Pvt. Ltd., P.O. Chatal, P.S. Ghatal, District East Midnapur.
...Accused Person
Offence committed: U/s. 138 of Negotiable Instrument
Act, 1881.
Date of occurrence: Since August, 2006 onwards.
Name of witnesses:
1. Sri Ashoke Mondal s/o. Naba Kumar Mondal, Manager
of U.B.I Raghunathpur Branch, Dist. Purulia.
2. Sanjoy Ganguly s/o. Late Dhirendranath Ganguly.
3. Shyamapada Kumbhakar, s/o. Late Gopal Chandra
Kumbhakar both of Raghunathpur, P.O. & P.S.
Raghunathpur, Dist. Purulia.
The humble petition on behalf of the complainant
Most respectfully showeth:
1. That the complainant hails from a very respectable family
of Raghunathpun, District Purulia and he has been engaged
in construction enterprise and considering his credibility
and goodwill the local U.B.I. Raghunathpur Branch has
provided him with a trade loan account bearing A/C No. 9.
2. That the complainant in operating his trade loan account
has very often visits to the U.B.I. Raghunathpur Branch
and thus a close tie grew up with the Branch Manager,
Sri Ashoke Mondal.
3. That sometime in the month of January, 2006 the
complainant along with witness No. 2 had met the Branch
Manager, U.B.I. Raghunathpur Branch and there he noticed
the accused present in his chamber. Sri Ashoke Mondal
introduced the accused to the complainant saying that the
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Bijoy Kumar Moni v. Paresh Manna & Anr.
latter is an established personality in construction work at
Raghunathpur and is a solvent party having trade loan A/C
in his Branch. Sri Mondal also informed the complainant
that he knows the accused personally and he is the owner
of a renowned nursing home styled "Shilabati" Hospital Pvt.
Ltd. of Ghatal, East Midnapur. Sri Mondal also apprised
the complainant that the accused is contemplating to
start a nursing home Project at Raghunathpur with huge
investments.
4. That the complainant innocently believed all the
narration of Sri Mondal. Accused also taking advantage of
such introduction grew familiar with the complainant and
also apprised him in details his contemplated project at
Raghunathpur and sought for complainant's co-operation
in as much as he is a man of the locality. The Complainant
was greatly impressed by the talking of the accused and
assured to cooperate with him in all respect.
5. That the accused thereafter kept close contact with the
complainant and over phone from Ghatal. On 28.02.2006
the complainant along with witnesses Nos. 2 and 3 had
come to the U.B.I. Raghunathpur Branch and there the
accused met him and informed that he is in dire need of
Rs. 7,00,000/- (Seven Lacs) only for a couple of months
for incidental expenses relating to his contemplated
project. Complainant innocently believed the accused and
issued a cheque No. 951764 on his trade loan A/C for Rs.
7,00,000/- in favour of the accused on 28.02.06.
6. That the accused withdrew the sum of Rs. 7,00,000/-
and shortly thereafter the accused again approached the
complainant for another sum of Rs. 1,45,000/- (One Lac
forty five thousand) in presence of the witnesses Nos. 2
and 3. Complainant was hesitant to accede to such request
of the accused but latter due to repeatedly insistence the
complainant arranged for the sum on the promise of the
accused to repay the entire sum very shortly.
7. That the complainant accordingly paid Rs. 1,45,000/- to
the accused in presence of Witnesses Nos. 2 and 3 in the
early part of March, 2006.
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8. That the accused thereafter started avoiding the
complainant. However, on 28.04.2006 the accused in
discharge of his existing debt and liabilities issued in
favour of the complainant at Raghunathpur a cheque
bearing No. 997309 for Rs. 8,45,000/- (Eight Lac forty five
thousand) on his A/C maintained in Chartered Bank, N.S.
Road Kolkata. However the accused while handing over
the said cheque requested the complainant not to present
the same for encashment before third week of July, 2006.
9. That the complainant as per the instructions of the
accused presented the Cheque No. 997309 dated
28.4.2006 for encashment on 22.07.2006 through his
Banker U.B.I. Raghunathpur Branch. The said cheque
bounced and the complainant received back the cheque
along with unpaid item nemo, of standard chartered Bank
dated 27.7.06 through his Banker on 03.08.2006 with the
note "Insufficient funds.
10. That the complainant thereupon through his Lawyer
Sri Arun Kumar Moni of Raghunathpur Court had issued
a demand notice to the accused dated 14.08.2006. It was
sent under registered Post with A/D on 16.08.2006 and it
was duly received on behalf of the accused on 19.08.2006
as per the endorsement appearing on the A/D card.
11. That the accused even inspite of the receipt of
the demand notice failed to pay Rs. 8,45,000/- to the
Complainant. However he kept on giving false and frivolous
excuses to the complainant over phone and through Sri
Ashok Mondal Branch Manager, Raghunathpur U.B.I.
Branch that he would repay the sum soon.
12. That the accused had with fraudulent intention
prevailed! Accused had upon the complainant with the tacit
support of Sri Ashoke Mondal to part with Rs. 8,45,000/-
(Eight Lac forty five thousand) and he also with malafide
intention issued the cheque knowing fully well that the
same would never get cleared.
13. That the accused has thus committed an offence U/s.
138 of the Negotiable Instrument Act, 1881 and is liable
to be prosecuted and punished in accordance with law.
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Bijoy Kumar Moni v. Paresh Manna & Anr.
14. That the complainant is filing the Cheque No. 997309
along with unpaid item memo. issued by the Bank, Postal
receipt A/D card and office copy of the demand notice. It
is therefore most respectfully prayed that your Honour will
be pleased to take cognisance of the offence and issue
process against the accused to stand his trial in the court
of law in accordance with law.
AND
For this act of kindness, your petitioner as in duty bound
shall ever pray.
Affidavit
Sd/-illegible
28/8/2023"
10. During the trial, the complainant entered the box and led oral evidence.
He was cross examined by the defence counsel appearing for the
accused. It appears that the accused also examined himself and as
his witness the Branch Manager was also examined.
11. In the further statement of the accused recorded under Section 313
of the Criminal Procedure Code, 1973 (for short "the Cr.P.C."), the
Trial Court put a specific question:
"11; P.W.1 Sri Bijoy Kr Moni, has stated in his examinationin-chief that, since thereafter you started avoiding the
complainant. However, on 28/04/06 you in discharge of your
existing debts and liabilities issued a cheque bearing No.
997309 for Rs. 8,45,000/- on your account maintained in
chartered Bank. N.S Road. Kolkata. Do you have anything
to say about this statement?"
12. To the aforesaid Question No. 11, the accused replied that he had
issued the cheque as a security towards a loan transaction.
13. The Question No. 21 in the further statement of the accused reads
thus:
"21) Qus:- P.W.1 Sri Bijoy Kumar Moni, further stated
during in his evidence that, you have prevailed upon the
complainant by gaining his confidence took Rs.8,45,000/-
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and thereafter issued cheque no. 997309 to him with the
knowledge that there is no sufficient fund in the account.
What do you have to say about his statement?"
14. To the aforesaid question, the answer of the accused was that the
cheque was issued by the company as a security towards some
mortgage.
15. Upon appreciation of the oral as well as documentary evidence, the Trial
Court vide Judgment and Order dated 19.07.2017 held the accused
guilty of the offence punishable under Section 138 of the NI Act. The
operative part of the order passed by the Trial Court reads thus:
"That the convict Paresh Manna is sentenced to suffer
simple Imprisonment for one year. The convict is further
sentenced to pay compensation amounting to Rs.
10,00,000 (Ten lakhs only) to the complainant namely
Bijoy Kumar Moni within two months from the date of this
order, in default of payment of which the convict is liable
to further suffer rigorous imprisonment for two months."
ii.
Proceedings before the Sessions Court
16. The accused, aggrieved by the order of conviction and sentence
passed by the Trial Court, went in appeal before the Sessions Court.
The Sessions Court affirmed the findings recorded by the Trial
Court and dismissed the appeal vide Judgment and Order dated
22.02.2019. The operative part of the order passed by the Sessions
Court reads thus:
"Accordingly it is ordered that the Criminal appeal no 03/17
be and the same is dismissed on contest.
The impugned judgment and order of conviction dt.
19.07.17 passed by Ld. Judicial Magistrate, 1" Court,
Raghunathpur in C.Case no. 39/06 (TR No. 315/06) is
hereby affirmed.
The stay of operation of judgment and order of conviction
dt. 19.07.17 is thus vacated.
The appellant is directed to surrender before the Trial Court
to serve out the sentence as directed within a month from
the date of delivery of judgment."
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Bijoy Kumar Moni v. Paresh Manna & Anr.
17. At this stage, we may also reproduce some of the findings recorded
by the Sessions Court:
"In the case in hand before the Trial Court according to the
ocular version of DW 1, the appellant himself, he tried to
convince that he did not take any money in his personal
capacity. Now we find the clear picture about the transaction
in respect of cheque no. 951764 from evidence of DW 2,
the manager of UBI, Raghunathpur branch, the banker
of the respondent/complainant, who was brought by the
accused/ appellant to adduce evidence on his behalf. In
course of the ocular evidence the original cheque no.
951764 dt. 28.02.06 amounting to Rs. 7,00,000/- was
identified and proved by DW 2 and he admitted at the
time of cross examination that on 28.02.06 the sum of Rs.
7,00,000/- was debited to the accused/ appellant.
Throughout the trial the accused/appellant did not place any
document or did not adduce any evidence that he, being
the Director of Shilabati Hospital Private Ltd., had joint
account with the company and that was operated by him
for any transaction with that company. Being questioned
about getting the confidence of the respondent/complainant
to get the entire amount of Rs. 8,45,000/- and subsequent
issuance of cheque bearing no. 997309 in discharging
the liability of repayment, the accused/appellant took the
plea that the said cheque was issued from the company
as security of mortgage. But again to the utter surprise in
course of trial no document of any mortgage was produced
by him to establish the fact that the cheque bearing no.
997309 was issued in discharging the liability as security
and the company was liable also for that ground. The
appellant tried to shift the onus upon the respondent/
complainant, but he could not succeed to that effect. In my
considered opinion I am constrained to take into account
the plea of the accused that the company was also the
accused of that case ad thus the ruling relied upon by
the accused/ appellant do not render any support to the
contention of him.
In this regard I would like to refer the observation of Hon'ble
Apex Court as reported in 2010 AIR SCW 4616 and as
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relied upon by the side of respondent. It has been observed
by Hon'ble Apex Court that: "Negotiable Instruments Act (26
of 1881), S. 138- Dishonour of cheque Complaint- Tenable
only against drawer of cheque-Cheque drawn by employee
of appellant-company on his personal account- Even if
it be for discharging dues of appellant- company and its
Directors-Appellant-company and its Directors cannot be
made liable under 5. 138."
From a bare reading of S.138 of NI Act the first and
foremost ingredient is that the person who is to be made
liable should be the drawer of the cheque and should have
drawn the cheque on an account maintained by him with
a banker for payment of any amount of money to another
person from out of that account for discharging whole or
part, of any debt or any liability.
At the time of his examination u/s 313 Cr.P.C when
the memory of the appellant was shattered by putting
question about issuance of cheque bearing no. 997309
amounting to Rs. 8,45,000/- from his account maintained
at Chattered Bank, NS Road, Kolkata, he admitted about
such issuance of cheque but placed another story about
such issuance of that cheque as loan security. As I have
already held, throughout the trial the accused/ appellant
never bothered to prove anything to substantiate his
proposition that there was any agreement between
him and the complainant/ respondent about his taking
loan for any purpose or that he received the amount
vide cheque no. 951764 on behalf of the company i.e.
Shilabati Nursing Home Private Ltd.
In this regard I would like to refer to the observation of
Hon'ble Apex Court as reported in 2015 AIR SCW 4015
and as relied upon by the side of respondent. It has
been observed by Hon'ble Apex Court that: "Negotiable
Instruments Act (26 of 1881), S. 138- Dishonour of cheque-
Liability Cheque drawn by respondent in his personal
capacity and not by company of which he is Managing
Director Company is not liable even if it is for discharging
dues of company Respondent being drawer of cheque is
alone liable for offence under S. 138," "Presumptions are
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Bijoy Kumar Moni v. Paresh Manna & Anr.
devices by use of which the Courts are enabled and entitled
to pronounce on an issue notwithstanding that there is no
evidence or insufficient evidence. Under the Evidence Act
all presumptions must come under one or the other class
of the three classes mentioned in the Act, namely, (1)
'may presume (rebuttable), (2) 'shall presume (rebuttable)
and (3) 'conclusive presumptions' (irrebuttable). The term
'presumptions' is used to designate inference, affirmative
or dis-affirmative of the existence of a fact, conveniently
called the 'presumed fact drawn by a judicial tribunal, by
a process of probable reasoning from some matter of fact,
either judicially noticed or admitted or established by legal
evidence to the satisfaction of the tribunal. Presumptions
literally means 'taking as true without examination or
proof...." (2009) 2 SCC 513.
To disprove the presumption, the accused should
bring on record such facts and circumstances, upon
consideration of which, the Court may either believe that
the consideration and the debt did not exist or there non
existence was so probable that a prudent man would
under the circumstances of the case, act upon the plea
that they did not exist.