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TMI Blog2021 (12) TMI 1230X X X X Extracts X X X X X X X X Extracts X X X X ..... deposit as collateral on behalf of the respondent no. 1-Company in the Dena Bank, Park Street Branch and in discharging the said legal liabilities and debt, the respondent no. 1- Company issued one account payee cheque bearing no. 354086 dated 20th April, 2013 for an amount of Rs. 50,00,000/- drawn on the Lakshmi Vilas Bank Ltd. in favour of the appellant-Company. The said cheque was duly signed by the respondent no. 2 as Director of the respondent no. 1-Company. The appellant-Company presented the said cheque on 11th July, 2013 in its account maintained in HDFC Bank Ltd. Park Street Branch but it was returned unpaid by the banker of the respondent-Company on the ground of insufficient fund. The appellant-Company came to know that the said cheque was dishonoured on 26th July, 2013 from the computer generated returned memo dated 12th July, 2013. The appellant-Company through its authorized representative sent a demand notice to the respondent no. 1-Company and respondent no. 2, Director of the Company through their learned advocate by registered post with acknowledgement due. The accused no. 2 received the said notice on 23 rd August, 2013. In spite of receipt of such notice, the r ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the relevant point of time that the fixed deposit was renewed from time to time and finally on 5 th January, 2013, the interest accumulated in the said fixed deposit was credited to the account of Rashmi Enterprises (Pvt.) Ltd. Subsequently, however, the said fixed deposit was credited to the loan account of the respondent no. 1-Company as the said Company failed to repay the loan amount within due time. The learned Magistrate disbelieved the case of the complainant on the following grounds: - First, the complainant Company failed to prove that the cheque in question was drawn in favour of the appellant-Company in discharge of any debt or other liability. Secondly, the complainant failed to satisfy as to why the complainant Company agreed to stand as a guarantor for the loan taken by the respondent no. 1-Company and deposited the fixed deposit of Rs. 50,00,000/- as collateral security for the loan taken by respondent no. 1-Company. In the absence of any business relation between the appellant-Company and the respondent-Company, question of liability and issuance of cheque in discharge of such liability by the respondent no. 1-Company does not arise. It was held by the learned T ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nd makes it over to the payee remains liable unless he adduces evidence to rebut the presumption that the cheque had been issued for payment of a debt or in discharge of a liability. It is immaterial that the cheque may have been filled in by any person other than the drawer, if the cheque is duly signed by the drawer. If the cheque is otherwise valid, the penal provisions of Section 138 would be attracted. 34. If a signed blank cheque is voluntarily presented to a payee, towards some payment, the payee may fill up the amount and other particulars. This in itself would not invalidate the cheque. The onus would still be on the accused to prove that the cheque was not in discharge of a debt or liability by adducing evidence". The learned Advocate for the appellant next refers to a decision of this Court in Nita Kanoi @ Bansal Vs. M/s. Paridhhi & Anr. reported in (2015) 1 Cal LT 626. In the said judgment, it is held by this Court that Section 20 of the Negotiable Instruments Act defines a cheque signed by the drawer without writing the name of the drawee and the amount in the said cheque as an "inchoate stamped instrument". According to the said provision, where one person signs an ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 141 of the Negotiable Instruments Act. Mr. Moyukh Mukherjee, learned Advocate for the respondents, on the other hand, submits that the appellant filed the complaint under Section 138 of the Negotiable Instruments Act only to harass the respondents and the entire proceeding is mala fide. It is submitted by the learned Advocate for the respondents that the appellant-Company failed to prove that they issued a fixed deposit amounting to Rs. 50,00,000/-(Rupees Fifty Lakhs) drawn on Dena Bank in favour of the respondent No.1-Company and the cheque in question was issued by respondent No.2 in discharge of the said liability. He has also raised a question that if a bank loan is sanctioned in favour of one Company, can another Company stand as guarantor and deposit its fixed deposit with the bank as collateral security. In order to substantiate his argument, it is argued by the learned Advocate for the respondents with reference to a decision of the Hon'ble Supreme Court in the case of Krishna Janardhan Bhatt Vs. Dattatraya G. Hegde reported in (2008) 4 SCC 54 that Section 139 merely raise a presumption in favour of holder of cheque that the said cheque has been issued for discharge ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 441 it was submitted on behalf of the appellant /holder of the cheque that the proposition of law as enunciated in Krishna Janardhan Bhatt (supra) was in conflict with statutory provisions as well as an established line of precedence of the Apex Court. In that context the Hon'ble Supreme Court in Rangappa (supra) held:- "......the presumption mandated of Section 139 of the Act does indeed include the existence of legally enforceable or debt or liability." In the light of the said observation, the decision in Krishna Janardhan Bhatt (supra) was overruled. The observation of the Three-Judge Bench in Rangappa (supra) runs as under:- "Where in agreement with the respondent claimant that the presumption mandated by Section 139 of the Act does indeed include the existence of a legally enforceable debt or liability to the extent, the impugned observations in Krishna Janardhan Bhatt (supra) (2008) 4 SCC 54 may not be correct. However, this does not in any way cast doubt on the correctness of the decision in that case since it was based on the specific facts and circumstances therein. As noted in the citations this is, of course, in the nature of a rebuttable presumption and it is ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... power to review at large the evidence on which the order of acquittal was founded and to reach the conclusion that upon the evidence on record, the order of acquittal should be reversed when the trial Court fails to appreciate the evidence on record lawfully in its true perspective or the order of acquittal suffers from patent legality and mala fide, the High Court has every authority to reverse the judgment of acquittal. In the instant appeal, it is found on proper appreciation of evidence that the learned Magistrate erred in appreciating the evidence on record. She also fails to ascertain the fact of the complainant's case and illegally held that the complainant failed to prove that the cheque in question was issued by D.W.1 in discharge of a legally enforceable debt. She also failed to consider the law of presumption enunciated in Section 139 of the Negotiable Instruments Act in its true perspective. Therefore, the judgment and order of acquittal passed by the learned Metropolitan Magistrate, 20 th Court, Calcutta in C 30480 of 2013 is liable to be set aside. Accordingly, the appeal is allowed on contest, however, without costs. The judgment and order of acquittal passed ..... X X X X Extracts X X X X X X X X Extracts X X X X
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