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IN THE HIGH COURT AT CALCUTTA

CRIMINAL APPELLATE JURISDICTION

APPELLATE SIDE

Present:-

HON’BLE JUSTICE CHAITALI CHATTERJEE DAS.

CRA 99 OF 2007

PREMIER MEDICAL SUPPLY STORES PROPRIETOR

PREMIER DISTRIBUTORS CACUTTA (P) Ltd.

VS

THE STATE OF WEST BENGAL & ORS .

For the Respondent

no. 2 : Mr. Ayan Bhattacharjee, Sr. Adv.

Mr. Suman Mazumdar, Adv.

Mr. Chandrachur Banerjee, Adv.

Last heard on : 04.02.2026

Judgement on : 08.05.2026

Uploaded on : 08.05.2026

CHAITALI CHATTERJEE DAS :-

1. This is an application under Section 378(3) of the Code of Criminal Procedure,

1973 against an judgement and order of acquittal dated 30.6.2006 delivered

by the learned Metropolitan Magistrate, 5th Court, Calcutta in case no.

672/95 corresponding to T.R number 352/95, under S ection 138/141 of

Negotiable Instrument Act .

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Brief resume of the case

2. It is the case of the present petitioner that on the basis of a complaint filed on

behalf of the complainant /petitioner under Section 138 read with Section 141

of the Negotiable Instrumental Act before the learned Chief Metropolitan

Magistrate, Calcutta, the complaint case was initiated against the present

respondent and the cognizance was taken and transferred the case to the

court of learned Metropolitan Magistrate, 5th Court, Calcutta for enquiry, trial

and disposal. The allegations made in the petition of complaint were as follows;

The accused No.1 a partnership firm and accused no. 2 to 4 are the partners

of the accused no.1 and responsible for the day-to-day conduct of the business

of the accused no.1. The accused persons in discharge of their liabilities issued

an account pay cheque dated 28.3.1995 amounting to ₹1, 89, 363.54 paisa

drawn on United Bank of India, Santoshpur Branch, Kolkata -7000 32.

3. The complainant duly presented the said cheque with its banker at Kolkata

Main branch, but the said cheque was returned on 25.4.1995, with the remark

insufficiency of funds, as there was no sufficient money in the account of the

accused to honour the cheque. It was further alleged that the complainant

thereafter send a notice on 4.5.1995, intimating about the dishonour of the

said cheque and thereby called upon the accused persons to pay the sum of

₹1, 89, 363.54p within 15 days from the receipt of the said notice. The accused

persons received the said notice on 6.5.1995, 8.5.1995 and 10.5.1995,

however, they ignored to pay any amount towards the dishonoured cheque . It

was further alleged that accused persons issued the said Cheque in discharge

of its existing liability and the same was returned dishonoured for insufficiency

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of funds, and in spite of demand, they refused to pay and as such made

themselves liable to be prosecuted under section 138, read with section 141 of

the Negotiable Instrument Act.

4. The learned Metropolitan M agistrate 5th court, Calcutta after hearing

arguments passed the order of acquittal against which a criminal appeal no.

355 of 2001 was filed before this court and by the judgement and order dated

4.1.2006 allowed the appeal by setting aside the order of acquittal passed by

the learned Metropolitan Magistrate and remand back case to the same court.

On remand the learned Magistrate after hearing the arguments advanced on

behalf of the complainant and the accused persons again passed the order of

acquittal. Being aggrieved thereby this Special leave to Appeal has been filed.

In this case, despite administrative notice served upon the petitioner none

responded and accordingly, Mr Soham Banerjee was engaged as Amicus

Curiae.

Submission

5. The Learned amicus curiae argued that the learned Magistrate did not

consider that the cheque in question was issued in discharge of legally

enforceable, debt and liabilities, and the earlier judgement of the same court

did not dispute the issuance of cheque in discharge of legally enforceable debt

or liability and the view taken by the court on the previous occasion was set

aside by the High Court at Calcutta in the criminal appeal filed challenging the

said order of acquittal. It was incorrectly held by the learned Magistrate that

the complainant had been successful in proving the cheque in question issued

in discharge of legally enforceable debt and liabilities, and while acquitting, the

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authenticity of the issuance of the cheque was not disputed but merely relied

upon the fact that the complainant had no authority to file the complaint. The

jural relation of the complainant with the premier medical supplies and stores

is not established in court of trial or in title of the petition of complaint, which

is bad in law, illegal and perverse as observed by the learned Magistrate and

was erroneous. Accordingly, prayed for setting aside the order of acquittal.

6. The Learned Senior Advocate Mr. Ayan Bhattacharjee at the outset argued

that the alleged case was started about 30 years back and speedy trial, early,

hearing and quick disposal are the sine qua none of criminal jurisprudence

and the prolong delay itself can be a ground for non-consideration of the

appeal .In this regard relied upon the decision of the Hon’ble Supreme Court in

State of Punjab versus Ajaib Sing h

1

It is further assailed that partners

cannot be convicted in absence of conviction of firm/company and relied upon

the decisions reported in State of Madras versus C.V Parekh and Anr.

2

(Paragraph 3).

7. The Learned Senior Advocate further relied upon the judgement of Aneeta

Hada versus Godfather Travels and Tours Pvt Ltd .

3

on the similar point

where the Hon’ble Supreme Court held in paragraph 32:

“32. We have referred to the aforesaid authorities to

highlight that the company can have criminal liability

and further, if a group of persons that guide the

business of the companies have the criminal intent,

that would be imputed to the body corporate. In this

1

(1995) 2 SCC 486

2

(1970) 3 SCC 491

3

(2012) 5 SCC 661

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backdrop, Section 141 of the Act has to be

understood. The said provision clearly stipulates that

when a person which is a company commits an

offence, then certain categories of persons in charge

as well as the company would be deemed to be liable

for the offences under section 138. Thus, the statutory

intendment is absolutely plain. As is perceptible, the

provision makes the functionaries and the companies

to be liable and that is by deeming fiction. Deeming

fiction has its own signification.”

In paragraph 58 it was held:

“58. Applying the doctrine of strict

construction, we are of the considered opinion

that commission of offence by the company is an

express condition precedent to attract the

vicarious liability of others. Thus, the words “ as

well as the company” appearing in the section,

make it absolutely unmistakably clear that when

the company can be prosecuted, then only the

persons mentioned in the other categories could

be vicariously liable for the offence subject to the

averments in the petition and proof thereof . One

cannot be oblivious of the fact that the company

is a juristic person and it has its own

respectability. If a finding is recorded against it,

it would create a concavity in its reputation.

There can be situations when the corporate

reputation is affected when a director is

indicted.”

8. It was further argued that no interference to be made unless the order or

view of the trial court is perverse .In this regard relied upon the case of

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Dhanpal versus State By Public prosecutor Madras

4

in para 39, where it

was observed and held:

“39. The following principles emerge from the cases

above:

1) The accused is presumed to be innocent until

proven guilty. The accused possessed this

presumption when he was before the trial court. The

trial court’s acquittal bolsters the presumption that he

is innocent.

2) The power of reviewing evidence is wide and the

appellate court can reappreciate the entire evidence

on record. It can review the trial court’s conclusion

with respect to both facts and law, but the appellate

court must give due weight and consideration to the

decision of the trial court.

3) The appellate court should always keep in mind

that the trial court had the distinct advantage of

watching the demeanour of the witnesses. The trial

court is in a better position to evaluate the credibility

of the witnesses.

4) The appellate court may only overrule or otherwise

disturb the trial court’s acquittal if it has “very

substantial and compelling reasons” for doing so.

6) If two reasonable or possible views can be reached-

one that leads to acquittal, the other to the conviction-

the High Courts/appellate courts must rule in favour

of the accused………..

4

(2009) 19 SCC 401

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41. The settled legal position as explained above is

that if the trial court’s view is possible or plausible,

the High Court should not substitute the same by its

own possible view……”

9. It is further argued that the complaint under section 138 of the Negotiable

Instrument Act, 1881 is valid only if the attorney has proper authority as in

this case the complainant is the CEO and proprietor of another firm and

authorised by the Director of the Complainant Company. In this regard, the

decision relied upon In A. C. Narayanan versus State of Maharashtra and

Anr.

5

where in para 30, it was held and observed that:

“30. In the light of the discussion, we are of the

view that the power-of-attorney holder may be

allowed to file, appear and depose for the

purpose of issue of process for the offence

punishable under Section 138 of the NI Act. An

exception to the above is when the power of

attorney holder of the complainant does not have

a personal knowledge about the transactions

then he cannot be examined. However, where

the attorney holder of the complainant is in

charge of the business of the complainant payee

and the attorney holder alone is personally

aware of the transactions, there is no reason

why the attorney holder cannot depose as a

witness. Nevertheless, an explicit assertion as to

the knowledge of the power of attorney holder

about the transaction in question must be

specified in the complaint. On this account, the

fourth question becomes infructuous.

5

(2014) 11 SCC 790

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………

33.2. The power of attorney holder can depose

and verify on oath before the court in order to

prove the contents of the complaint. However, the

power of Attorney holder must have witnessed

the transaction as an agent of the payee /holder

in due course or possess due knowledge

regarding the said transactions.

33.3 It is required by the complainant to make

specific assertion as to the knowledge of the

power of attorney holder in the said transaction

explicitly in the complaint and the power of

attorney holder who has no knowledge regarding

the transactions cannot be examined as a

witness in the case.”

10. The Learned Senior advocate further assailed the law laid down regarding

blank cheque vis-a-vis section 138 of N.I Act and relied upon the decision of

the Hon’ble Supreme Court in in K. Ramesh versus K. Kothandaraman

6

.

Accordingly prayed for dismissal of the Appeal.

After hearing the Learned Counsels and going through the materials it is seen

that the moot question to be decided whether the judgement of acquittal is

perverse or whether it was rightly passed.

Analysis

11. In this case, the complaint was lodged by the complainant being the

authorised representative of Premier Medical Supplies and Stores, proprietor

6

(2024) 12 SCC 82

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Premier distributors Private Limited against M/s. Pharma Traders and its 3

partners. The accused persons were alleged to have issued the cheque,

totalling a sum of Rs.1, 84, 363.54 drawn on UBI, Santoshpur Branch, which

was presented within the validity period, and it was dishonoured on 25.4.1995

for insufficiency of fund. The witnesses were examined and several documents

were proved and accused persons were also examined under Section 313

Cr.P.C. The defence cited the complainant as defence witness. It was the

definite case of the accused that a blank cheque was issued and delivered to

as ‘security’ for the realisation of the debts and liabilities of the accused for

medicines supplied to them by the complainant concerned which was filled up

and the amount was inserted without the consent and knowledge of the

accused persons.

12.The learned Magistrate while deciding the case for the second time on the

issue that whether the cheque was issued in discharge of debt and liabilities of

the accused person observed that from the evidence on record, it was found

that the medicines were sold and supplied to the accused firm from time to

time and the payments were received from time to time were credited to their

account, but there is no evidence to the effect that if final settlement of

accounts took place between both the parties and the final dues of the accused

firm was ascertained in presence of both the parties without such final

settlement of accounts and the complainant unilaterally put an amount in the

blank cheque and presented the same for encashment. In such circumstances,

the complainant cannot get the benefit of presumption under section 139 and

therefore held that the complainant failed to prove that the cheque amount

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was due and payable by the accused person. This court is unable to concur

with such observation in view of the fact that at no point of time the

complainant raises the issue disputing the amount on the ground of final

settlement of bills between the parties and point of final settlement was never

assailed. On the contrary it was admitted by the accused persons that the

cheque was issued by them in respect of the amount mentioned in the invoice

raised for supply of medicine.

13. The judgement and order of acquittal was passed predominantly on the point

that that a blank cheque was given as security deposit for their business

transaction, and without having any final settlement, the complainant filled up

the amount and placed the same, and therefore the complainant failed to

produce any document to prove the cheque amount was due and payable by

the accused persons to the complainant. So there was failure on the part of the

complainant to establish that the cheque was issued in discharge of the debts

or liabilities of the accused person. In view of the decisions as relied upon by

the learned Senior advocate passed by the Hon’ble Supreme Court in K.

Ramesh (supra) where taking note of the decision of Bir Singh versus

Mukesh Kumar

7

the Hon’ble Supreme Court observed that a person who

signs a cheque and makes it over to the payee remains liable unless he uses

evidence to revert the presumption that the cheque was issued for payment of

a debt or in discharge of a liability. It is immaterial that the cheque was filled

up by any person, other than the drawer if the cheque is duly signed by the

drawer. In para 4 it was held:-

7

(2019) 4 SCC 197

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“4. In this regard our attention was drawn to

paras 32, 33, 34 and 36 of the judgement in Bir

Singh versus Mukesh Kumar, (2019) 4 SCC

197, wherein it has been observed that even if a

blank cheque leaf is voluntarily signed and

handed over by the accused towards some

payment would attract the presumption under

section 139 of the Act and in the absence of any

cogent evidence to show that the cheque was not

issued in discharge of the debt, the presumption

would hold good. The said paras are extracted

below :

“32. The proposition of law which emerges from

the judgements referred to above is that the onus

to rebut the presumption under section 139 that

the cheque has been issued in discharge of a

debt or liability is on the accused and the fact

that the cheque might be post-dated does not

absolve the drawer of a cheque of the penal

consequences of section 138 of the negotiable

instrument Act.

33. A meaningful reading of the provisions of the

Negotiable Instruments Act, including in

particular, Section 20, 87 and 139, makes it

amply clear that a person who signs a cheque

and makes it over to the payee remains liable

unless he adduces evidence to rebu t 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

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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 paym ent,

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 said cheque was not in

discharge of a debt or liability by adducing

evidence.

Xxxxxx

36. Even a blank cheque leaf, voluntarily signed

and handed over by the accused, which is

towards some payment, would attract

presumption under section 139 of the Negotiable

Instruments Act, in the absence of any cogent

evidence to show that the cheque was not issued

in discharge of a debt.”

14. In this case, the evidence adduced by the complainant was placed before

the accused persons and the partner of Respondent No1 Firm Smt. Shikha

Dutta admitted that she issued a cheque bearing number 014123 dated

28.3.95 of an amount of ₹1,84,363 .54 paisa of the complainant company, and

she admitted her signature on the cheque. The other partner, Vidhu Ranjan

Dutta also admitted that such cheque was issued and it contains his

signature. The third partner, Moni Roy could not say exactly whether any such

cheque was signed by them or not. However, all of them denied about the

allegations levelled against them without making any other statement. Jagdish

Chandra Gupta the authorised representative and an employ ee under the

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Premier Medical Supplies and Stores – Proprietor Premier Distributors,

Calcutta Pvt Ltd and a Chief accountant was also cited as the defence witness

and from his evidence it can be gathered that Mr Joy Gopal Banerjee was the

Director of Premier Distribution Private Ltd who authorised him to file the case

as a Director of the complainant company only to represent the company and

he issued the demand notice and the payee is Premier Medical Supplies and

Stores mentioned in the cheque . In this regard it is pertinent to refer to a

recent decision of the Hon’ble Apex Court in Dhanasingh Prabhu vs.

Chandrasekar & Another

8

where the Hon’ble Supreme Court analysed the

distinct features of partnership firm and company and held that even without

impleading the partnership Firm the complaint under N.I. Act is maintainable

against the partner. In this case the Firm was made accused in the complaint.

Therefore, the point rises about legal sanctity of the authorisation given by Mr

Jai Gopal Banerjee being the Director of Premier Distribution Private Limited

when the cheque was issued in favour of Premier Medical Supply and Stores

and hence not in conformity with the provision of section 291 of the

companies Act. The issue regarding the authorisation was assailed before the

High court when previously the Appeal was filed. The Learned Co-ordinate

Bench discarded the said point, decided that under section 141 of the

Negotiable Instrument Act the complaint under section 138 can be made by

the payee or the holder in due course of the cheque ,It was further held that

anyone can set the criminal law in motion by filing a complaint of facts

constituting of offence before a Magistrate entitled to take cognizance on the

sole ground that the complainant was not competent to file the complaint .of

8

2025 INSC 831

Page 14 of 18

the complainant and remanded back the matter to decide afresh. It was any

employee of the company can represent company in the court proceeding and

the relationship between Mr. Banerjee and the payee company and between Sri

Gupta and payee company is well established .Therefore the point raised with

regard to the authorisation being not considered by the learned trial court

cannot be said to be either illegal or perverse .

15. Hence the above discussions left with the point for consideration whether

after a prolong delay in disposal of the case itself would be the ground for not

considering the appeal. The argument advanced by the Learned Senior

Advocate that in the Memorandum of Appeal no such ground has been taken

which could have been an adverse effect in the appeal and that speedy trial,

early hearing and quick disposal are the sine qua non of criminal

jurisprudence. It was strenuously argued that by the learned Senior Advocate

that there is delay in disposal of appeal, which itself is a ground for not

considering this appeal further, and in this regard relied upon the decision

reported in In State of Punjab versus Ajaib Singh

9

in paragraph 6,where

it was held that:

“6. prior to adjudicating on the rival

submissions, it appears necessary to preface it

with few observations general in nature, but vital

according to us. Although crime never dies nor

there should be any sympathy for the criminal,

yet human factors play an important role and

reflect advertently or inadvertently in the

decision-making process. In this appeal there is

9

(1995) 2 SCC 486

Page 15 of 18

a time-lag of more than eighteen years from the

date of incident and merely 15 years from the

date of acquittal and its hearing. By any

standard it is shocking. And this has been

aggravated by still more shocking behaviour of

the government which shall be adverted to later.

Speedy trial, early hearing and quick disposal

are the sine qua non of criminal jurisprudence. In

some countries like England days are fixed

statutorily for trial of cases. Keeping an accused

in custody for a day more than it is necessary is

constitutionally impermissible and violative of

human dignity, freedom of life and liberty. The

overcrowded court dockets, the phenomenal rise

of public interest litigation, duty to ensure

enforcement of fundamental rights, undoubtedly

keeps this court under stress and strain. But

that cannot be an excuse for keeping the sword

of Damocles hanging on the accused for an

indefinite period of time. It does not do any credit

rather makes one sad. If the accused is not

granted bill and serves out the sentence then the

appeal is rendered academic for all practical

purposes. And the right to establish innocence

fades away in lack of enthusiasm and interest. If

he is granted bail then long delay may give rise

to humane considerations. Time heals the

gravest scar and mitigates deepest injury

suffered physically, mentally and emotionally.

Therefore, if the courts have been rendered

helpless and exasperating delay is threatening

to eat away the system then the government

may consider either to increase the strength to

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clear the backlog or device some mechanism by

which criminal appeals pending for more than

reasonable time in higher courts should stand

disposed of.”

16. It is further contended that precise and well vision ground in memorandum

of appeal is imperative and which is absolutely absent in the instant appeal.

This is a futile attempt to revive a case when on third occasion, the learned

Magistrate passed such order of acquittal. In this regard relied upon the

decision of Kapil Deo Shukla versus S tate of Uttar Pradesh

10

in

paragraph 4, it was observed that;

“4. Assuming that the High Court was correct in its

appreciation of the legal position, even so, we must

express our disapproval of any such practice as has

been referred to in the judgement below. A

memorandum of appeal is meant to be a succinct

statement of the grounds upon which the appellant

proposes to support the appeal. It is a notice to the

court that such and such specific grounds are

proposed to be urged on behalf of the appellant, as

also a notice to the respondent that he should be

ready to meet those specific grounds. A memorandum

of appeal with a bald ground like the one quoted

above, is of no help to any of the parties or to the

court. It may have the merit of relieving the persons

responsible for drawing up the grounds of appeal, of

applying his mind to the judgement under appeal and

its weak points, but this slight advantage, if it is so, is

very much outweighed by the serious disadvantage to

10

AIR 1958 SC 121

Page 17 of 18

the parties to the litigation and the court which is to

hear the appeal.”

17. In Gaya Din Versus Hanuman Prasad

11

the Hon’ble Apex Court discussed

the term “perverse” which means that the findings of the subordinate

authority are not supported by the evidence brought on record or they are

against the law or suffer from the vice of procedural irregularities. In this case

the finding of the trial court about the final settlement and that there was no

legal debt or liability appears to be perverse and hence interference by this

court is necessary.

Conclusion

18. The learned Magistrate upon considering the judgement relied upon was of

the view that when it is glaringly evident that the Respondents have admittedly

issued the cheque for the specific amount in terms of the invoice raised mere

delay in disposing the appeal would not entitle the accused persons to escape

liability or be set scot free.

19. Therefore, this Court finds merit in the appeal. Hence, this CRA 99/2007 is

hereby allowed. The judgement and order of acquittal passed by the Learned

Magistrate is hereby set aside.

20. The order of conviction is passed against the Respondents under Section 138

of NI Act, 1881. However, the Respondents/Accused persons namely Bidyut

Ranjan Dutta, Shikha Dutta and Moni Roy are sentenced only to fine which is

of Rs. 3,00,000/- to be paid as compensation to the appe llant and to be

deposited in the trial court within 12 weeks from date failing which they will

have to undergo the simple imprisonment for a period of 3 months.

11

(2001) 1 SCC 501

Page 18 of 18

21. Let a copy of this judgement along with the T.C.R. be sent to the concerned

court for initiation and necessary action.

22. Urgent Photostat certified copies of this Judgment, if applied for, be supplied

to the parties upon compliance of all necessary formalities.

[CHAITALI CHATTERJEE (DAS), J.]