IN THE HIGH COURT AT CALCUTTA

CRIMINAL REVISIONAL JURISDICTION

APPELLATE SIDE

PRESENT:

THE HON’BLE JUSTICE UDAY KUMAR

CRR 871 OF 2022

CRAN 3 OF 2023

SWAPAN KUMAR BHANDARI

-VS-

STATE OF WEST BENGAL AND ANR.

For the Petitioner : Mr. Gunjan Shah

Ms. Shreya Agarwal

Mr. Chitra Bhanu Gupta

For the State : Mr. Sagar Saha

Ms. Nayana Mukhopadhyay

For the Opposite Party No.2 : Mr. Ayan Basu

Mr. Sumit Routh

Reserved on : 11.09.2026

Pronounced on : 05.10.2026

UDAY KUMAR, J.: –

1. The instant criminal revisional application brings to the fore a classic,

albeit intricate, interplay between a summary prosecution under

Section 138 of the Negotiable Instruments Act, 1881 (hereinafter

referred to as the "N.I. Act") and the subsequent fallout of a parallel

substantive criminal trial under Sections 409 and 420 of the Indian

Penal Code (hereinafter referred to as the "IPC"). The petitioner, Sri

Swapan Kumar Bhandari, has knocked at the portals of this Court

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invoking our revisional and inherent jurisdiction under Sections 401

and 482 of the Code of Criminal Procedure, 1973 (Cr.P.C.), praying for

the setting aside of the judgment and order dated 14

th December, 2021,

passed by the learned Additional Sessions Judge (Re-designated Court),

Bankura in Criminal Appeal No. 7 of 2019. By the said impugned

appellate judgment, the learned Additional Sessions Court was pleased

to affirm the judgment and order of conviction and sentence dated 7th

March, 2019, passed by the 6

th Court of the learned Judicial

Magistrate, First Class, Bankura in Complaint Case No. 220C of 2017,

whereby the petitioner was convicted under Section 138 of the N.I. Act

and was sentenced to suffer simple imprisonment for six months,

alongside a direction to pay ₹10,00,000/- as compensation under

Section 357(3) of the Cr.P.C.

2. To properly comprehend the canvas of this litigation, I must first trace

its genesis. The narrative unfolds with the lodging of a petition of

complaint by the opposite party no. 1, Sanjib Goswami, before the

learned Chief Judicial Magistrate, Bankura which was registered as

Complaint Case No. 220C of 2017. The foundational premise of the

complaint was that the father of the complainant had, from time to

time, reposed immense trust in the petitioner, who was closely

associated with postal savings and deposit schemes, by handing over

hard-earned money for investment into Post Office Monthly Income

Scheme (MIS) accounts standing in the names of the complainant and

his relatives. Instead of depositing the said funds into the designated

post office accounts, the petitioner dishonestly misappropriated the

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entire corpus for his own use. To pull wool over the eyes of the

complainant and his family and conceal his financial malfeasance, the

petitioner periodically produced fake passbooks and statements,

making them believe that their deposits were safe and intact. However,

upon the unearthing of this colossal fraud, the petitioner realized the

gravity of his culpability, acknowledged his misdeeds in writing, and

solemnly executed a declaration coupled with a notarized non-judicial

stamp paper agreement (marked during trial as Exhibits 6 and 7),

explicitly admitting his monetary liability towards the complainant's

family.

3. In partial or full discharge of such acknowledged and legally enforceable

liability, the petitioner drew and issued a cheque bearing a specific date

in November 2016 (10.11.2016) for a sum of ₹8,00,000/- in favour of

the complainant (marked Exhibit 1 during trial). When the complainant

presented this negotiable instrument for encashment through his

banker, the State Bank of India, Harigram More Branch, on 2nd

February, 2017 (Exhibit 2), it was met with dishonour. The bank

returned the cheque unpaid on 13th February, 2017, bearing the

categorical and unambiguous endorsement "Insufficient Funds" (Exhibit

3). Moving with statutory promptitude, the complainant caused a

formal demand notice to be dispatched through his learned advocate on

9th March, 2017 (Exhibits 4, 4a, and 4b), calling upon the petitioner to

liquidate the due sum of ₹8,00,000/- within fifteen days from the date

of the receipt thereof. Upon the absolute failure of the petitioner to heed

the notice or make the requisite payment within the statutory window,

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the complainant instituted the formal statutory complaint under

Section 138 of the N.I. Act on 30th March, 2017.

4. Upon taking cognizance, the learned Chief Judicial Magistrate

transferred the case to the file of the 6th Court of the learned Judicial

Magistrate, First Class, Bankura for trial and disposal. On 9th

November, 2017, the learned Magistrate examined the accused under

Section 251 of the Cr.P.C., to which he pleaded not guilty and claimed

to be tried, thereby setting the adversarial wheels in motion. During the

extensive course of the trial, the complainant adduced both oral and

documentary evidence. The complainant himself stepped into the

witness box as P.W. 1 on affidavit, meticulously detailing the

entrustment of funds, the forged passbooks, the written confession, the

issuance of the cheque, its presentation, subsequent dishonour, and

the statutory notice. To formally establish the banking transaction and

the return memo, the Branch Manager of the SBI Harigram More

Branch was examined as P.W. 2. Alongside oral testimony, the

complainant brought on record vital documentary exhibits, including

the dishonoured cheque (Exhibit 1), the deposit slip (Exhibit 2), the

bank return memo (Exhibit 3), the demand notice along with postal

envelopes and A/D cards (Exhibits 4, 4a, 4b), the seizure list (Exhibit

5), the notarized agreement (Exhibit 6), and the written declaration

executed by the petitioner (Exhibit 7).

5. Upon the closure of the complainant's evidence, the petitioner was

examined under Section 313 of the Cr.P.C., where he offered a

wholesale denial of all incriminating circumstances, branding the

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accusations as false and asserting that he never issued any such

cheque. Crucially, the petitioner set up a specific, albeit

uncorroborated, defence version: that when he had visited the State

Bank of India branch at Bankura to withdraw a nominal sum of ₹300/-,

a person named Sanjib was standing beside him who allegedly

snatched, tore away, and retained a leaf from his cheque book.

Significantly, despite being afforded full and fair opportunity, the

petitioner declined to adduce any independent defence evidence (D.W.)

and, most importantly, failed to lodge any contemporaneous police

report, General Diary (G.D.), or First Information Report (FIR)

concerning the alleged forcible seizure or theft of his signed cheque

book.

6. The learned Trial Court, upon a meticulous appraisal of the evidence on

record and the rigorous invocation of the statutory presumptions

enshrined under Sections 118 and 139 of the N.I. Act, concluded that

the complainant had successfully discharged his initial burden by

establishing foundational facts, thereby shifting the onus onto the

accused. The learned Trial Court evaluated the petitioner’s improbable

and uncorroborated "snatched cheque book" defence and found it

completely devoid of judicial credibility, taking note of the total absence

of any contemporaneous police complaint or G.D. Consequently, by its

judgment dated 7th March, 2019, the learned Trial Court convicted the

petitioner under Section 255(2) of the Cr.P.C. for the commission of the

offence punishable under Section 138 of the N.I. Act, sentencing him to

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CRR 871 OF 2022

simple imprisonment for six months and directing payment of

₹10,00,000/- as compensation under Section 357(3) of the Cr.P.C.

7. Feeling aggrieved by the judgment of conviction, the petitioner preferred

Criminal Appeal No. 7 of 2019 before the Sessions Court at Bankura.

During the pendency of this appeal, a significant development occurred

on a parallel front: in an independent criminal proceeding bearing

Bankura P.S. Case No. 63 of 2017 instituted under Sections 409 and

420 of the IPC concerning the underlying post office fund

embezzlement, the 1st Court of the learned Additional Sessions Judge,

Bankura, by a judgment dated 4th July, 2019, recorded an acquittal in

favour of the petitioner, citing various prosecution shortcomings such

as the failure to send MIS books for handwriting examination, non-

production of original transaction records, and the lack of direct

testimony from postal officials establishing his active accountability.

8. Seizing upon this subsequent acquittal in a parallel proceeding, the

learned counsel for the appellant/convict vehemently argued before the

Additional Sessions Court that the very foundation of the cheque debt

stood legally demolished. It was further urged, relying upon prominent

authorities such as Rangappa v. Sri Mohan [(2010) 11 SCC 441], D.

Vinod Shivappa v. Nanda Belliappa [(2006) 6 SCC 456], C.C. Alavi Haji v.

Palapetty Muhammed & Anr. [(2007) 6 SCC 555], and Basalingappa v.

Mudibasappa [(2019) 5 SCC 418], that the statutory demand notice was

never served because the petitioner was incarcerated in a correctional

home at the time of dispatch, and that the statutory presumptions

under Sections 118 and 139 of the N.I. Act were grossly misapplied.

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9. Per contra, the learned counsel for the respondent/complainant, relying

on Indo Automobiles v. Jai Durga Enterprises & Ors. [(2008) 8 SCC 529]

and C.C. Alavi Haji (supra) countered before the Sessions Court, that

the written notarized agreement and declaration (Exhibits 6 and 7)

independently proved the acknowledged liability of the petitioner, that

the statutory demand notice sent by registered post to a correct address

establishes "deemed service" under Section 27 of the General Clauses

Act, 1897 and that an accused cannot evade liability by ignoring the

15-day window after receiving court summons.

10. The learned Additional Sessions Judge, Bankura, upon a

comprehensive re-appreciation of the record and the rival submissions,

delivered its considered appellate judgment on 14th December, 2021,

dismissing the appeal on contest and affirming the judgment of the

learned Trial Court. The appellate court rightly reasoned that:

Firstly, the appellant failed to produce any concrete

documentary proof showing that he was actually inside a

correctional home on the exact date the postal delivery of the

notice was attempted, and noted that his official address in

court records matched the notice address. Citing the dictum in

C.C. Alavi Haji (supra), the court observed that the appellant had

a statutory window to make payment within 15 days of receiving

court summons, which he also failed to do, thereby rendering

his non-service defence hollow.

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Secondly, the written notarized agreement and declaration

executed by the accused appellant constituted an independent,

legally enforceable liability satisfying the core requirements of

Section 138 of the N.I. Act.

Thirdly, the reverse onus under Section 139 of the N.I. Act

requires a probable defence by a preponderance of probabilities,

but the uncorroborated statement regarding a snatched cheque

book failed to inspire judicial confidence in the total absence of

any police complaint or FIR.

11. Undaunted by the concurrent findings of guilt returned by both the

Trial and the Sessions Courts, the petitioner has now approached this

Court by way of the instant revisional application under Sections 401

and 482 of the Cr.P.C. The core challenge of this revision rests on the

premise that his acquittal in the parallel criminal proceeding under

Sections 409/420 IPC acts as a total extinguishment of the underlying

debt foundation, that the statutory presumptions and notice service

requirements were misconstrued, and that the continuation of the

conviction results in a manifest miscarriage of justice.

12. In course of the hearing of the instant criminal revisional application,

the respective contentions of the parties have been advanced with

considerable legal acumen. To properly evaluate the merits of the

challenge mounted against the concurrent judgments of conviction, it is

essential to set out, analyse, and juxtapose the rival submissions

advanced by the learned counsels for the petitioner (convict-appellant)

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CRR 871 OF 2022

and the opposite party (complainant-respondent), keeping in view the

foundational facts, statutory provisions, and judicial precedents

brought on record.

13. The learned counsel for the petitioner strenuously contends that the

impugned judgment and order of conviction, as affirmed by the First

appellate court, are entirely unsustainable in law and facts, having

been rendered on surmises and conjectures without proper

appreciation of material contradictions in the evidence. The primary

plank of the petitioner's argument rests upon the foundational premise

of the debt; it is submitted that the entire substratum of the complaint

under Section 138 of the N.I. Act was rooted in the allegation that the

petitioner had misappropriated money entrusted to him by the

complainant’s father for Post Office MIS deposits. In this regard, the

petitioner places heavy reliance upon the judgment dated 4th July,

2019, passed by the 1

st Court of the learned Additional Sessions Judge,

Bankura in Bankura P.S. Case No. 63 of 2017 under Sections 409 and

420 of the IPC, whereby the petitioner was honourably acquitted. It is

urged that once a competent criminal court, in a substantive trial

concerning the identical factual matrix, recorded a categorical finding

that the prosecution failed to prove entrustment, omitted to send MIS

books for handwriting examination, produced no original transaction

documents, and failed to establish any active responsibility or signed

receipt, the "legally enforceable debt or liability" required under Section

138 of the N.I. Act stands legally demolished and obliterated.

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14. Advancing further on the question of the statutory demand notice, the

learned counsel for the petitioner contends that the mandatory

requirement of service of notice under clause (b) to the Proviso

appended to Section 138 was never fulfilled. It is submitted that at the

precise time when the demand notice was dispatched by the

complainant, the petitioner was actually confined in a correctional

home in connection with another criminal proceeding, rendering

personal receipt of the demand notice or knowledge thereof impossible.

15. Placing reliance upon authoritative pronouncements such as Rangappa

(supra), D. Vinod Shivappa (supra), C.C. Alavi Haji (supra), and

Basalingappa (supra), the petitioner argues that the reverse onus

clauses under Sections 118 and 139 of the N.I. Act impose only an

evidentiary burden and not a persuasive one.

16. The standard of proof required to rebut the statutory presumption

under Sections 118 and 139 of the N.I. Act is merely that of a

"preponderance of probabilities." The petitioner submits that he

successfully raised a probable defence by demonstrating through his

Section 313 Cr.P.C. examination that his signed cheque book was

unauthorizedly taken away by one Sanjib while he was at the SBI bank

branch, and that the trial court and appellate court grossly erred in

shifting the standard of proof into an insurmountable mountain of

absolute certainty, thereby occasioning a grave miscarriage of justice.

17. Per contra, the learned counsel for the opposite party (private Opposite

Party No. 2-complainant), supported by the learned Public Prosecutor

for the State, vehemently urges that the revisional application is

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thoroughly devoid of merit and represents a desperate attempt by a

convicted fraudster to escape the rigors of law. It is submitted that the

complainant successfully discharged his initial burden by stepping into

the witness box as P.W. 1 and adducing robust documentary evidence,

including the dishonoured cheque (Exhibit 1), the bank return memo

reflecting "Insufficient Funds" (Exhibit 3), and most importantly, the

written notarized agreement and declaration (Exhibit 6 and 7) wherein

the petitioner unequivocally admitted his misappropriation of funds and

acknowledged his monetary liability in favour of the complainant to the

tune of ₹8,00,000/-. These documents, according to the learned

counsel for the Opposite Party No. 2, constitute an independent, legally

enforceable civil and monetary liability that squarely attracts the

operation of Section 138 of the N.I. Act, irrespective of the procedural

technicalities or different standards of proof in a separate police-

investigated IPC trial.

18. Addressing the issue of the statutory demand notice and the invocation

of statutory presumptions, the learned counsel for the Opposite Party

No. 2 placed explicit reliance upon the landmark dictum of the Hon'ble

Apex Court in C.C. Alavi Haji (supra), as well as Indo Automobiles

(supra) and forcefully contended that when a notice is dispatched by

registered post with acknowledgment due to the correct and admitted

address of the drawer, Section 27 of the General Clauses Act, 1897 read

with Section 114 of the Indian Evidence Act, 1872 gives rise to a strong

presumption of due service. The learned counsel for the Opposite Party

No. 2 points out that the petitioner failed to bring on record any

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concrete, contemporaneous documentary proof establishing that he was

physically inside a correctional home on the exact date postal delivery

was attempted, and notes that the address used for the notice perfectly

matched with the address furnished by the petitioner himself in his bail

bonds and court examinations. Furthermore, citing paragraph 17 of

C.C. Alavi Haji (supra), the learned counsel for the Opposite Party No. 2

emphasizes that even assuming, arguendo, there was any initial dispute

regarding postal service, the petitioner was afforded a clear statutory

window of fifteen days from the date of receipt of court summons (along

with a copy of the complaint) to pay the cheque amount—a window he

completely squandered.

19. Finally, regarding the defence of the "snatched cheque book," the

learned counsel for the Opposite Party No. 2 submits that both the trial

court and the First appellate court correctly appreciated that a

sweeping, uncorroborated ipse dixit statement made under Section 313

of the Cr.P.C. cannot amount to a probable defence under the

touchstone of preponderance of probabilities. The complete absence of

any contemporaneous police General Diary (G.D.), FIR, or written

intimation to the bank regarding a forcibly stolen or missing signed

cheque book exposes the utter falsity and mala fide nature of the

defence. Hence, the learned counsel for the Opposite Party No. 2 prays

for the outright dismissal of the revisional application and the

immediate execution of the concurrent judgments of conviction and

sentence.

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20. Upon a comprehensive evaluation of the rival submissions advanced by

the learned counsel for the respective parties, a careful scrutiny of the

evidentiary materials on record, and an analysis of the concurrent

findings rendered by both the Trial and the First Appellate Court, this

Court finds that the proper, conclusive, and judicious disposal of the

instant criminal revisional application hinges upon the determination of

the following pivotal questions of law and fact:

i. Whether an order of acquittal recorded in a separate,

substantive criminal trial under Sections 409 and 420 of the

IPC (concerning the underlying postal fund embezzlement)

automatically and legally obliterates the existence of "legally

enforceable debt or liability" required under Section 138 of the

Negotiable Instruments Act, so as to vitiate a conviction based

on an independently executed written acknowledgement,

notarized agreement, and a dishonoured negotiable instrument?

ii. Whether the petitioner successfully discharged his "reverse

onus" under Sections 118 and 139 of the N.I. Act by

establishing a probable defence on a preponderance of

probabilities through a mere uncorroborated statement under

Section 313 of the Cr.P.C. regarding a "snatched cheque book,"

in the absolute absence of any contemporaneous police General

Diary (G.D.), FIR, or written communication to his banker?

iii. Whether the mandatory requirements concerning the dispatch,

delivery, and service of the statutory demand notice under

clause (b) to the proviso appended to Section 138 of the N.I. Act

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CRR 871 OF 2022

stood legally satisfied, particularly when the notice was sent to

the correct address via registered post and the drawer failed to

make payment within fifteen days of receiving the court

summons, in light of the authoritative exposition of law in C.C.

Alavi Haji v. Palapetty Muhammed (supra)?

iv. Whether the concurrent findings of fact and law returned by the

learned Trial Court and affirmed by the First appellate court

suffer from any patent perversity, gross illegality, procedural

miscarriage, or manifest error warranting the invocation of the

supervisory and corrective jurisdiction of the High Court under

Sections 401 and 482 of the Cr.P.C.?

21. The first question forms the cornerstone of the petitioner’s assault on

the concurrent judgments of conviction. To resolve this seminal

question conclusively, I must consider the factual backdrop and the

evidentiary material that emerged during the course of the trial. The

undisputed factual matrix reveals that the opposite party no. 2, Sanjib

Goswami, instituted Complaint Case No. 220C of 2017 under Section

138 of the N.I. Act upon the dishonour of a cheque bearing a date in

November 2016 (10.11.2016) for an amount of ₹8,00,000/- (Exhibit 1),

which was returned unpaid by the State Bank of India, Harigram More

Branch (Exhibit 2), with the bank memo citing "Insufficient Funds"

(Exhibit 3). However, the genesis of this financial instrument is deeply

intertwined with a broader ledger of transactions wherein the petitioner,

Swapan Kumar Bhandari; who was entrusted with postal savings and

deposit schemes, received funds from the complainant’s father for

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investment into Post Office Monthly Income Scheme (MIS) accounts.

When the financial defalcation came to light, the matter did not rest

merely on oral assertions. The complainant brought on record vital

documentary evidence, most notably a solemn written declaration and a

notarized non-judicial stamp paper agreement executed by the

petitioner himself (admitted and marked during trial as Exhibits 6 and

7), wherein the petitioner unequivocally acknowledged his monetary

liability towards the complainant’s family and undertook to repay the

entire misappropriated sum.

22. Concurrently, it is a matter of record that a separate criminal

prosecution was set in motion against the petitioner vide Bankura P.S.

Case No. 63 of 2017 dated 23.02.2017 under Sections 409 and 420 of

the IPC concerning the underlying postal funds embezzlement. In that

substantive criminal trial, the 1st Court of the learned Additional

Sessions Judge, Bankura, by a judgment dated 4th July, 2019,

recorded an acquittal in favour of the petitioner. A careful perusal of the

grounds of that acquittal demonstrates that the criminal court

exonerated the petitioner not because the financial transaction was

proved to be non-existent or false, but purely on account of technical

prosecution shortcomings and evidentiary lacunae specifically, the

failure of the prosecution to send the original MIS passbooks for expert

handwriting examination, the non-production of primary institutional

transaction records, and the omission to examine high-ranking postal

officials who could legally establish direct penal accountability of the

petitioner under Section 409 IPC.

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23. Seizing upon this acquittal, the learned counsel for the petitioner has

pleaded that the criminal court’s finding of non-proof in the IPC case

cuts the very ground from under the feet of the Section 138

proceedings, rendering the cheque a mere instrument without any

"legally enforceable debt or liability." This submission, though

superficially attractive, is fundamentally flawed when tested against the

touchstone of statutory interpretation and established criminal

jurisprudence.

24. I have examined the distinct legal character and statutory anatomy of a

prosecution under Section 138 of the N.I. Act vis-à-vis a prosecution

under Sections 409/420 of the IPC. A proceeding under Section 138 is

a unique species of statutory offence introduced by the legislature to

maintain credibility and commercial sanctity in financial transactions

involving negotiable instruments. It is essentially of a civil-penal

character, operating on strict liability principles once the foundational

facts, namely, the drawing of a cheque, its presentation within validity,

its dishonour due to insufficiency of funds or exceeding arrangements,

and the failure to make payment within fifteen days of receiving a

statutory demand notice, are established. The expression "legally

enforceable debt or liability" under the Explanation appended to Section

138 of the N.I. Act refers to any debt or liability that is valid and binding

in law. It does not demand that the debt must be established through a

rigorous, long-drawn police-investigated trial for criminal breach of

trust or cheating.

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25. In the instant case, the finding of the existence of a "debt or liability" by

the learned Trial Court did not depend solely on the oral testimony of

the complainant or the outcome of the police investigation into the

postal schemes, it derived its absolute legal force and unassailable

validity from the voluntary act of the petitioner himself, who executed a

formal, notarized agreement and a written declaration (Exhibits 6 and

7) recognizing such liability. It is a well-settled principle of law that a

civil or monetary liability can be independently acknowledged,

confessed, and secured through a written contract or promissory note.

Once an accused person explicitly acknowledges his monetary liability

in writing and issues a negotiable instrument in partial or full discharge

thereof, a subsequent acquittal in a parallel criminal case grounded

strictly on procedural lapses, failure of handwriting analysis, or lack of

institutional proof by the prosecution cannot magically wipe out the

written acknowledgment or render the debt legally non-existent.

26. Furthermore, it is an elementary axiom of criminal jurisprudence that

the standard of proof, rules of evidence, and objectives governing a trial

under the IPC are vastly different from those governing a summary trial

under the N.I. Act. An acquittal in a criminal case under Sections

409/420 IPC on a finding that the prosecution failed to prove the

specific ingredients of criminal breach of trust or cheating beyond

reasonable doubt under the strict standards of criminal law does not

constitute a judicial declaration that no financial transaction ever took

place, nor does it invalidate a distinct civil-commercial liability or a

negotiable instrument issued for consideration. To hold that an

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acquittal in an IPC cheating case automatically nullifies a cheque

bounce case would introduce a dangerous absurdity into commercial

law, enabling dishonest drawers to escape summary liability simply

because the police or the prosecution failed to dot their ‘i's’ and cross

their ‘t's’ in a separate, unrelated criminal trial.

27. Both the learned Trial Court and the First Appellate Court correctly

appreciated this legal distinction. The appellate court rightly noted that

the written agreement and declaration (Exhibits 6 and 7) stood

independently proven and formed a rock-solid foundation of a legally

enforceable debt, in discharge of which the cheque was issued by the

petitioner. The petitioner’s attempt to piggyback on his acquittal in

Bankura P.S. Case No. 63 of 2017 to annihilate the statutory operation

of Section 138 of the N.I. Act is legally untenable and must be

unequivocally rejected.

28. Accordingly, in view of the facts, the documentary evidence (Exhibits 1

to 7), the testimony of the witnesses (P.W. 1 and P.W. 2), and the

established principles governing negotiable instrument jurisprudence,

this Court conclusively determines that an order of acquittal in a

separate, substantive criminal trial under Sections 409/420 IPC,

resting on technical proof shortcomings, does not legally obliterate or

extinguish the independently acknowledged ‘legally enforceable debt or

liability’ underpinning a prosecution under Section 138 of the

Negotiable Instruments Act and accordingly answers the first question

in the negative, against the petitioner.

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29. I shall now take up the second question for consideration and

determination and in order to resolve this question with judicial

precision, it is imperative to revisit the statutory framework governing a

prosecution under Section 138 of the N.I. Act, 1881. Once the

foundational facts, namely, the drawing of the cheque, the signature

thereupon, and its presentation and dishonour, are admitted or proved,

the provisions of Sections 118(a) and 139 of the N.I. Act mandate the

raising of a mandatory statutory presumption in favour of the holder of

the cheque. Section 139 explicitly stipulates that it shall be presumed,

unless the contrary is proved, that the holder of a cheque received the

cheque of the nature referred to in Section 138 for the discharge, in

whole or in part, of any debt or other liability.

30. The legal nature of this presumption has been authoritatively

expounded by the Hon’ble Supreme Court in a catena of decisions, most

notably in Rangappa (supra) and Basalingappa (supra), wherein it is

well settled that the standard of proof required to rebut this statutory

presumption is not that of proof beyond reasonable doubt, which is

normally expected of a prosecution in a criminal trial, instead, the

accused is called upon to establish a probable defence on a

preponderance of probabilities. The accused can either directly adduce

evidence to prove that the debt or liability did not exist, or rely upon the

materials brought on record by the complainant himself to create a

tangible and reasonable doubt in the mind of the court regarding the

existence of the presumed liability. However, a "probable defence"

cannot be raised on the bedrock of vague, bare denials, fanciful

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hypotheses, or uncorroborated oral assertions. There must be some

material, circumstance, or consistent line of defence that lends

credence to the version put forward by the accused.

31. Let me examine the nature of the defence set up by the petitioner in the

present case. Throughout the trial and during his examination under

Section 313 of the Cr.P.C., the petitioner did not adduce a single shred

of independent defence evidence (D.W.). He chose not to examine any

witness, nor did he enter the witness box himself as a witness on oath

under Section 315 Cr.P.C. or subject himself to cross-examination.

Instead, his entire defence rested on a solitary, sweeping ipse dixit

statement that when he had visited the State Bank of India branch at

Bankura to withdraw a nominal sum of ₹300/-, an individual named

Sanjib stood beside him and forcibly snatched, tore away, and retained

a leaf from his signed cheque book without his consent.

32. When this somewhat exotic theory of a "snatched cheque book" is

weighed against the ordinary course of human conduct and common

sense, it simply crumbles. A careful revisiting of the trial records reveals

a deafening silence as there is a total and absolute absence of any

contemporaneous police complaint, G.D., FIR, or written intimation to

the SBI branch by the petitioner regarding any such forcible snatching

or theft of a cheque leaf. The petitioner woke up to this novel theory

only when he was cornered during the criminal trial under Section 138.

Both the learned Trial Court and the First appellate court rightly

branded this belated defence plea as an uncorroborated, afterthought

concoction engineered solely to wriggle out of statutory liability.

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33. The learned counsel for the petitioner argued that the both the Trial

and Sessions courts placed an impossible burden of proof upon the

accused, virtually requiring him to establish his innocence beyond

reasonable doubt, thereby violating the principles laid down in

Rangappa (supra) and Basalingappa (supra). This argument is entirely

fallacious. The courts below did not shift the burden of proof to an

absolute standard; rather, they evaluated the material placed by the

petitioner to see if it even met the minimum threshold of a "probable

defence on a preponderance of probabilities." An uncorroborated, self-

serving oral assertion under Section 313 Cr.P.C., completely

unsupported by any contemporaneous documentary or institutional

record (such as a police diary or bank notice), does not constitute a

"probable defence." It remains a mere bald assertion incapable of

dislodging the robust statutory presumptions operating under Sections

118 and 139 of the N.I. Act.

34. My judicial conscience is thus entirely satisfied that the petitioner has

miserably failed to discharge the reverse onus cast upon him by law.

The concurrent findings of both the Trial and the Sessions courts

holding that the statutory presumptions under 118 and 139 of the N.I.

Act remained completely unrebutted are anchored in sound legal

reasoning and unassailable appreciation of evidence. Accordingly,

viewing the facts, the statutory provisions, and the binding precedents,

I am convinced that a bare, uncorroborated statement under Section

313 Cr.P.C. regarding a "snatched cheque book," unsupported by any

contemporaneous police G.D., FIR, or bank intimation, falls woefully

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short of establishing a probable defence on a preponderance of

probabilities. The second question is accordingly answered in negative,

against the petitioner.

35. Moving on to the third question for determination, I must now examine

clause (b) to the Proviso appended to Section 138 of the N.I. Act, which

stipulates that the payee or holder of the cheque must make a demand

for the payment of the said amount of money by giving a notice in

writing, within thirty days of the receipt of information by him from the

bank regarding the return of the cheque as unpaid. Furthermore,

clause (c) to the said Proviso mandates that to attract liability under

Section 138, the drawer of such cheque must fail to make the payment

of the said amount of money to the payee within fifteen days from the

date of receipt of the said notice. The service of a statutory demand

notice is a mandatory condition precedent for instituting a complaint

under Section 138; however, the law has also evolved practical

safeguards to ensure that a dishonest drawer cannot frustrate the

legislative intent behind the enactment by resorting to clever tactics of

evading service or by manipulating postal delivery receipts.

36. In the present case, the record reflects that upon the dishonour of the

cheque on 13

th February, 2017, the complainant caused a formal

statutory demand notice to be dispatched to the petitioner through his

learned advocate on 9

th March, 2017, by registered post with

acknowledgment due (Exhibits 4, 4a, and 4b). The petitioner, however,

raised a vehement objection during the trial and appellate stages,

contending that the statutory demand notice was never legally served

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upon him because he was physically confined inside a correctional

home / judicial custody at the relevant time when postal delivery was

attempted, thereby rendering receipt of the said notice impossible and

vitiating the cause of action.

37. This defence of non-service must be evaluated against the bedrock of

the authoritative and binding decision of the Hon’ble Supreme Court in

C.C. Alavi Haji (supra), as well as earlier principles governing postal

service under Section 27 of the General Clauses Act, 1897. It is a well-

settled principle that when a notice is sent by registered post to the

correct and admitted address of the drawer, a statutory presumption of

due service arises under Section 27 of the General Clauses Act read

with Section 114 of the Indian Evidence Act. An accused cannot be

permitted to take advantage of his own wrong by avoiding postal

delivery, refusing to accept the letter, or claiming non-receipt when the

notice has been dispatched to his correct address.

38. More importantly, the Hon’ble Supreme Court in C.C. Alavi Haji (supra)

carved out a definitive, common-sense rule to put an end to technical

evasions regarding notice service. The Apex Court categorically held

that even where an accused raises a genuine dispute regarding the

service of notice, if the said accused receives a summons from the court

along with a copy of the complaint, nothing prevents him from paying

the requisite cheque amount within 15 days of receiving such

summons. If the accused fails to make the payment within 15 days of

receiving the court summons, he cannot thereafter contend that there

was no proper service of notice under Section 138, as the receipt of

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CRR 871 OF 2022

summons serves as a clear notice of the claim, affording him an

opportunity to liquidate the liability and escape prosecution.

39. Applying this binding principle to the facts of the case at hand, we find

that the petitioner's plea of non-service collapses on two distinct

counts:

Firstly, the petitioner failed to bring on record any concrete,

contemporaneous institutional or documentary proof

demonstrating that he was actually incarcerated inside a

correctional home on the exact date postal delivery of the

demand notice was attempted. Furthermore, the address to

which the notice was dispatched matched the permanent and

correct address furnished by the petitioner himself in his official

court bonds and proceedings.

Secondly, even assuming arguendo that the postal envelope

was returned or unclaimed due to his temporary absence, the

petitioner undisputedly received the formal summons from the

learned Trial Court along with a copy of the complaint. He had a

clear statutory window of fifteen days from the date of receipt of

the summons to pay the sum of ₹8,00,000/-, which he

completely ignored, choosing instead to contest the matter on

technicalities. Under the mandate of C.C. Alavi Haji (supra),

such failure disentitles him from raising the defence of non-

service.

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CRR 871 OF 2022

40. Both the learned Trial Court and the First appellate court meticulously

examined this aspect and correctly applied the law laid down by the

Hon’ble Supreme Court in a catena of authoritative pronouncements.

The Sessions court rightly concluded that the procedural safeguards of

Section 138 of the N.I. Act stood fully satisfied, and the petitioner's

technical objections regarding notice service were nothing more than a

dilatory stratagem.

41. Consequently, the challenge mounted by the petitioner on the ground of

non-service of notice is entirely devoid of substance. Accordingly, this

question is answered in the affirmative and determined conclusively

against the petitioner, as the mandatory requirements concerning the

dispatch, delivery, and service of the statutory demand notice under

clause (b) of the proviso to Section 138 of the N.I. Act stood fully

satisfied, as the notice was dispatched to the correct address via

registered post, and in any event, the petitioner's failure to make

payment within fifteen days of receiving the court summons squarely

cured any alleged service defect in terms of the authoritative principles

enunciated in C.C. Alavi Haji (supra).

42. Turning finally to the last pivotal question for determination, I must

remind myself of the well-trodden and cautious path that marks the

discretionary exercise of revisional jurisdiction. It is an elementary and

cardinal principle of criminal jurisprudence that the revisional power of

a High Court under Section 401 read with Section 482 of the Cr.P.C. is

not that of a second appellate court. A High Court, while sitting in

revision, does not re-appreciate evidence as a matter of routine, nor

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CRR 871 OF 2022

does it substitute its own view for that of the Trial and Sessions courts

unless the concurrent findings are shown to be perverse, based on no

evidence or contrary to the evidence on record, or vitiated by glaring

legal errors and gross procedural illegality resulting in a miscarriage of

justice.

43. In the present case, a meticulous scrutiny of tidings and judgments

rendered by both the Trial and Sessions courts reveals a thorough,

comprehensive, and balanced appreciation of the entire factual canvas

and evidentiary record. The learned Trial Court, upon assessing the oral

testimony of the complainant (P.W. 1) and the bank official (P.W. 2)

alongside the unimpeachable documentary evidence namely the cheque

(Exhibit 1), the bank return memo (Exhibit 3), the statutory demand

notice with postal receipts (Exhibits 4, 4a, 4b), and most importantly,

the written declaration and notarized agreement executed by the

petitioner himself (Exhibits 6 and 7) returned a clear, reasoned finding

of guilt. This finding was subsequently re-evaluated, scrutinized, and

affirmed in its entirety by the First appellate court.

44. Search as I must through the records, I am unable to trace any patent

perversity, arbitrary exercise of judicial discretion, or glaring legal

infirmity in the concurrent findings arrived by the said Courts. The

defence sought to be raised was a fragile construct built upon an

uncorroborated statement under Section 313 Cr.P.C. regarding a

"snatched cheque book" and an attempt to exploit an acquittal in a

separate, technical IPC trial, both of which have been thoroughly

dismantled through established legal principles in the preceding

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CRR 871 OF 2022

discussions. There being no procedural miscarriage or error of law, the

foundational basis for invoking our extraordinary supervisory

jurisdiction stands completely eliminated.

45. To summarize the judicial determinations arrived at across the four

pivotal questions governing this revisional application, this Court

arrives at the following legal propositions:

(i) An order of acquittal recorded in a separate criminal trial under

Sections 409 and 420 of the IPC, resting strictly on technical

prosecution shortcomings or lack of institutional proof, does not

automatically or legally obliterate the independent finding of

legally enforceable debt or liability acknowledged through a

written contract, notarized agreement, and a negotiable

instrument under Section 138 of the N.I. Act.

(ii) The robust statutory presumptions under Sections 118 and 139

of the N.I. Act cannot be dislodged or rebutted by a bare,

uncorroborated statement made under Section 313 of the

Cr.P.C. regarding a "snatched cheque book," in the absolute

absence of any contemporaneous police G.D., FIR, or written

intimation to the bank.

(iii) The requirements concerning the dispatch and service of the

statutory demand notice under Section 138(b) of the N.I. Act

stand fully satisfied when sent to the correct address via

registered post, and in any event, the failure of the drawer to

liquidate the cheque amount within fifteen days of receiving the

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CRR 871 OF 2022

court summons cures any alleged service defect in terms of the

binding mandate in C.C. Alavi Haji (supra).

(iv) Concurrent findings of fact and law returned by the Trial and

the Sessions Courts, being founded on sound appreciation of

evidence and correct application of statutory provisions, are free

from any perversity or illegality, thereby precluding any

interference under our revisional jurisdiction of Sections 401

and 482 of the Cr.P.C.

46. In light of the foregoing discussions, the instant criminal revisional

application, being C.R.R. No. 871 of 2022 (arising out of Complaint

Case No. 220C of 2017 and Criminal Appeal No. 7 of 2019 originating

from Bankura), stands dismissed.

47. Consequently, the concurrent findings of conviction and sentence

recorded against the petitioner in the impugned judgments by the Trial

and the Sessions Courts are hereby affirmed in their entirety.

48. Connected pending application for extension of interim order, being

CRAN 3 of 2023 is also disposed of accordingly.

49. Interim orders, if any, stand vacated.

50. Bail bonds, if furnished during the pendency of this revision, stand

cancelled.

51. The petitioner is directed to surrender before the learned Trial Court

within four weeks from date to serve out the sentence imposed upon

him and satisfy the compensation directives, failing which the Learned

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CRR 871 OF 2022

trial court shall take immediate coercive steps in accordance with law to

execute the warrant of commitment and ensure compliance.

52. There shall be no order as to costs.

53. Let a copy of this judgment along with the Trial Court Records (T.C.R.)

be transmitted to the learned Trial Court forthwith for necessary

compliance and execution.

54. Case diary, be returned to the Learned Counsel for the State.

55. Urgent photostat certified copy of this judgment, if applied for, be

supplied to the parties upon compliance with all requisite formalities.

(Uday Kumar, J.)