Partha Sakha Datta, J.
1. By this revisional application the judgment and order dated 20.11.2003 passed by the learned Addl. Sessions Judge, 5th Fast Track Court, Calcutta in Criminal Appeal No. 89/2001 confirming thereby the judgment and order dated 21.8.01 passed in Complaint Case No. C-1702/1997 by the Id. Metropolitan Magistrate, 11th Court, Calcutta whereby the learned Magistrate found the petitioner/accused guilty of the offence punishable under Section 138 of the NI Act and convicted him accordingly and sentenced him to pay a fine of Rs. 4,000/-, in default, simple imprisonment for two months together with compensation of Rs. 2,54,160/- is under challenge.
2. M/s. Ankit Traders, the complainant represented by the OP No. 1 Anil Kumar Agarwal supplied materials to the petitioner/accused company M/s. Euro Metals and towards discharge of liabilities the accused issued a cheque being No. 887081 dated 24.4.1997 for Rs. 2,54,160/- in favour of the complainant drawn on Oriental Bank of Commerce, Princep Street Branch, Calcutta which, when presented on 13.5.97 for encashment was, dishonoured on the next day i.e. 14.5.97 with the remark 'payment stopped by the drawer'. The complainant came to know of this dishonourment of the cheque on 15.5.97, and then followed a demand notice dated 27.5.97 through his Advocate demanding payment of the amount and the petitioner/accused received the notice both at his office as also at his residential address on 29.5.97 and 14.6.97 respectively but in spite of receipt of the notice payment having not been made, criminal action was initiated by the de facto complainant/OP under Section 138 of the NI Act on 2.1.1997.
3. The learned Magistrate examined three witnesses for the complainant, and the accused/petitioner as DW. 1 and upon recording of evidence found the petitioner guilty of offence and convicted him under Section 138 of the NI Act and sentenced him as above.
4. The Criminal Appeal No. 89/2001 before the learned Addl. Sessions Judge, 5th Fast Track Court, Calcutta met with dismissal as a result of which the instant revisional application has been preferred under Section 401 read with Section 482 of the Cr.PC challenging the appellate judgment on the grounds inter alia that at the time the cheque was presented the alleged legal liability did not subsist and the learned Courts below made a wrong conclusion that there was existing liability, when in fact evidence was adduced by the accused himself in support of the defence that payments were made in instalments towards discharge of the liability so much so that on the date of presentation of the cheque there was no liability to the extent as was claimed by the complainant, that P.W. 3, the authorized agent of the complainant company could not say anything about the actual amount of outstanding liability as on 13.5.97 which ought to have been shown in the books of the company in the name of the accused, that the learned Trial Court completely overlooked the evidence of P.W. 3 who admitted in his cross-examination as to the quantum of amount they had already received from the accused against the amount of the impugned cheque on account of purchase of goods made by the accused under the bills which are Ext. 6 and Ext. 6/1.
5. I have heard at great length Ms. Sutapa-Sanyal, learned Advocate appearing for the petitioner but none appeared for the complainant though service was effected twice as per affidavit of service filed.
6. I am quite conscious of the limitations which the Revisional Court is beset with in view of the concurrent finding of facts by the two Courts below and the Court in exercise of the power under Section 482 of the Cr.PC can only interfere with if it would appear that oral evidence of the witnesses as also the documentary evidence do not at all warrant the finding arrived at by the learned Courts below and that they are patently wrong, manifestly absurd thus amounting to miscarriage of justice.
7. To summarize oral and documentary evidence, there is P.W. 1, Ranjit Kumar Mandal, the officer of the Oriental Bank of Commerce who proves the impugned cheque (Ext. 1), return memo dated 14.5.97 (Ext. 2) showing 'stop payment' order by the drawer, and statement of account of the account holder M/s. Euro Metals (accused company) for the month of May, 1997 (Ext. 3). Evidence of this witness is not worth considering inasmuch as his evidence is of a formal character. P.W. 2 Sunil Kumar Dey is an officer of the Corporation Bank, Armenian Street Branch where the complainant has his current account in the name of M/s. Ankit Traders and where the complainant presented the cheque for clearance on 13.5.97. This witness brought the statement of account of the complainant firm (Ext. 4). It is the evidence of one Anil Kumar Agarwal (P.W. 3), the authorized representative of the complainant that merits serious consideration. It is his evidence that he supplied materials to accused (CRC Iron and Steel) and raised two bills and two challans which were Ext. 6 and Ext. 6/1 and Ext. 7 and Ext. 7/1 respectively. He proved the demand notice dated 25.5.97 (Ext. 8), postal receipt (Ext. 9), A/D cards (Ext. 10 and Ext. 10/1) and the reply by the accused (Ext. 11). Before proceeding to consider cross-examination of this witness it is worthwhile to consider the bills and challans which originally constituted the liability of the accused and towards discharge of which the accused issued a cheque dated 24.2.97 for Rs. 2,54,160. Be it stated at the outset that that there was business transaction between the parties admit of no dispute and again it is not in dispute that the accused was supplied with irons and steel materials in terms of the two bills and two challans. It can fairly be stated here that neither in cross-examination of P.W. 3 nor in evidence of the accused/petitioner (DW. 1) it has been disputed and denied that the two bills and two challans were raised and issued following delivery of goods to the accused. Exhibit 5 is the letter of authority by the proprietors of the complainant firm authorizing P.W. 3 to file complaint against the accused/petitioner following dishonourment of the cheque. Exhibit 6 is one bill dated 3.2.97 for Rs. 1,78,150/- on account of delivery of 12.725 mt. C.R. Sheets @ Rs. 14,000/- per mt. Exhibit 6/1 is another bill dated 3.2.97 for Rs. 1,42,940/- on account of delivery in favour of the accused/petitioner of 10.210 mt. of C.R. Sheets @ Rs. 14,000/- per mt. Exhibit 7 is the challan corresponding to Ext. 6 and Ext. 6/1 is a challan corresponding to Ext. 7/1. It has not been denied by the accused that whatever legal liability he might have had to discharge in favour of the complainant such legal liability was on account of admitted delivery of goods to the extent of the quantum as per Ext. 6 and Ext. 6/1 and Ext. 7 and Ext. 7/1 and on account of such delivery the accused issued a cheque for Rs. 2,54,160/-. Importantly, presentation of the cheque, cheque being dishonoured, issuance of demand notice, acceptance of the demand notice by the accused and more importantly the reply dated nil by the accused in favour of the complainant to such demand notice are matters of fact admitting of no dispute. In the reply to the complainant acknowledging the demand notice the accused/petitioner stated that pursuant to issuance of the cheque for Rs. 2,54,160/- on 24.2.97 he started making payment to the complainant in instalments and on the day of the presentation of the cheque on 13.5.97 more than 50% of the amount due were already paid. Now, let us come to the evidence of the cross-examination of P.W. 3. The petitioner/accused issued the cheque for Rs. 2,54,160/- on 24.2.97 but significantly the cheque was presented by the complainant before the bank on 13.5.97 i.e. two months and a half after presentation of the cheque and according to the defence evidence, oral and documentary, during the space of two months and a half, a large sum of money was paid in five instalments out of which payment of four instalments have been admitted by P.W. 3 in his cross-examination itself and though P. W. 3 did not admit receipt of one instalment the documentary evidence (Ext. A) reveals that that instalment was also accepted by the complainant. To elaborate, P.W. 3 admitted that a sum of Rs. 50,000/-, of Rs. 30,000/-, of Rs. 20,000/-, of Rs. 25,000-thus totalling Rs. 1,25,000 was received by him on 6.3.97,13.3.97, 3.4.97 and 28.4.97 respectively. According to DW. 1 another payment of Rs. 60,000/- was also made by a cheque bearing No. 887125 dated 27.2.97 but P.W. 3 denied having accepted that money but Ext. A which is a certificate by Oriental Bank of Commerce, Princep Street Branch, Calcutta- 700 013 on 26.2.98 reveals that the cheque No. 887125 dated 27.2.97 for Rs. 60,000/- issued by the accused company in favour of the complainant partnership firm was honoured on 28.2.97 itself of presentation of the cheque through clearance by Corporation Bank. The complainant company could not disprove this correspondence which comes from the bank in course of the official transaction. Thus, it appears that the amounts paid in five instalments between 27.2.97 and 28.4.97 come to Rs. 1,85,000/- out of the amount of the cheque in question. To put in other words, a sum of Rs. 1,85,000/- was liquidated out of the cheque amount of Rs. 2,54,160/- and insofar as the total amount under the impugned cheque is concerned, a sum of Rs. 69,160/- remained outstanding for payment out of Rs. 2,54,160/-. It is not the evidence of the complainant (P.W. 3), nor is it the case of the complainant in the petition of complaint that this payment of Rs. 1,85,000/- did not have any nexus with the delivery of goods per Ext. 6 and 6/1 and the cheque amounting in question. It has not been claimed by P.W. 3 in his evidence that this payment of Rs. 1,85,000/- was related to a different transaction and not to the transactions under Ext. 6 and 6/1 or Ext. 7 or 7/1 following which the cheque for Rs. 2,54,160/- was issued. It is now, therefore, understood as to why P.W. 3 did not tender the cheque for encashment immediately after issuance of the cheque on 24.2.97. He presented the cheque on 13.5.97 i.e. after a gap of two months and a half and during this period of two months and a half the accused made payment of Rs. 1,85,000/- relating to the transaction. The accused extracted these facts from cross-examination of P.W. 3 and by adducing documentary evidence Ext. 11 and Ext. A also himself adducing evidence telling that he made these payments and the last payment was made on 29.4.97. He said in his evidence in chief that out of the amount under the cheque of Rs. 2,54,160/- a balance of Rs. 69,160/- was due to the complainant after making the last payment on 29.4.97. Both the parties bind themselves with the fact that the cheque for Rs. 2,54,160/- related to Ext. 6 and 6/1. This has been admitted in the evidence in cross-examination of DW. 1 as also in the evidence in chief of P.W. 3. Therefore, there is no scope to make out a third case that payment of Rs. 1,85,000/- related to different transactions as there is no evidence to that effect and it is the evidence of DW. 1 also that payment of Rs. 1,85,000/- related to the impugned cheque for Rs. 2,54,160/- and it is against the evidence of DW. 1 that the cheque for Rs. 2,54,160/- was issued against the bills Ext. 6 and 6/1. A stray suggestion was given to DW. 1 that this amount of Rs. 1,85,000/- was in respect of a separate transaction but P.W. 3 himself did not claim in his evidence either in his examination in chief or in his cross-examination that this payment of Rs. 1,85,000/- was in respect of a separate transaction and he did not say what was the nature and volume and extent of that separate transaction. Non-presentation of the cheque for two months and a half after receipt of the cheque has a nexus to the payment of Rs. 1,85,000/- within the space of the said two months and a half by the accused company. In the reply to the demand notice (Ext. 11) the accused expressly stated that he requested the complainant not to present the cheque so that he could make payment by instalments and immediately on getting permission from the complainant he started making payment till 28.04.97 against the amount of the cheque and thus 50% of the cheque amount was already paid before presentation of the cheque. In evidence P. W. 3 did not claim that the payment of Rs. 1,85,000/- was not towards payment against the cheque but against any other transaction. If it was the case of the complainant that the payment of more than 50% of the amount under cheque as made by the accused was not really towards liquidation under cheque but in connection with different transaction there would have been as of necessity an averment to that effect in the petition of complaint and also evidence to translate such averment but there is none. The accused produced the account book in relation to payment by him in favour of the complainant. Exhibit B is the statement of account in the year 1996-97 wherein payment of Rs. 60,000/- on 27.2.1997, Rs. 50,000/- on 6.3.97 and Rs. 30,000/- on 13.3.97 has been incorporated, while Ext. C is the statement of account relating to the complainant company showing entry of payment of Rs. 20,000/- on 3.4.97 and Rs. 25,000/- on 28.4.97. Ext. B and Ext. C when conjointly read showed a balance of Rs. 69,160/- due for payment to the complainant company. As on 31.3.97 total amount payable by the accused to the complainant as per Ext. B was Rs. 1,14,160/- and by two payments of Rs. 20,000/- and Rs. 25,000/- on 3.4.97 and 28.4.97 (Ext. C) the amount left to be paid as on 31.3.98 was Rs. 69,160/-. Thus it can be said that strong evidence has been adduced to improbabilize the case of the complainant that even after payment of Rs. 1,85,000/- a sum of Rs. 2,54,160/- was still due for payment against bills Ext. 6 and 6/1 or Ext. 7 or 7/1. The accused in his examination under Section 313 Cr.PC has stated in answer to the question put by the learned Magistrate that since as at 27.5.97 so much of the amount was not due for payment he asked for 'stop payment' to the bank. The learned Magistrate unfortunately did not at all consider the series of documentary evidence as also oral evidence of P.W. 3 and DW. 1 meticulously and superficially observed that the accused admitted his liability of Rs. 2,54,160/- as on 24.4.97. Yes, the accused admitted his liability of Rs. 2,54,160/- but he has laid distant individual evidence to say that during even a span of two months and a half during which the complainant did not present the cheque for encashment he made a payment of Rs. 1,85,000/- and it is not the finding of the learned Magistrate that such payment was in connection with any other transaction. It is for the first time that the learned Addl. Sessions Judge referred to the statement of the accused to the effect that between 24.2.97 and 13.5.97 a sum of Rs. 1,85,000/- was paid. Ld. Addl. Sessions Judge recorded that the complainant did not admit receipt of Rs. 60,000/- on 28.2.97 and thus disbelieved payment of that amount but he overlooked the fact that as per bank statement Ext. A, a sum of Rs. 60,000/- was received by the complainant on 28.2.97. It is true that provisions of Sections 118 and 139 of the NI Act raise a statutory presumption of existence of debt or legal liability when cheque is issued towards discharge of that liability and it is the accused who has to rebut the presumption that there was no liability. It appears that the learned Addl. Sessions Judge, though he referred to Ext. A, Ext. B and Ext. C did not meticulously examined the contents of those exhibits and if he would have examined the contents of Ext. A, Ext. B and Ext. C he would not have any occasion to hold that as on the date of presentation of the cheque the amount under the cheque was still due for payment.
8. Learned Addl. Sessions Judge observed in his judgment that during the year 1996-97 the accused purchased materials worth Rs. 1,82,500/- and according to the learned Judge payments so far made between the intervening period had no connection with the cheque in question. This observation is again without any evidence. Business transaction to the tune of Rs. 1,82,500/- during 1996-97 does not ipso facto prove that issuance of cheque for Rs. 2,54,160/- was unconnected with the payment of Rs. 1,85,000/-. Learned Judge disputed the defence version on the ground that in the bank account of the accused company the accused had only balance of Rs. 1310.27 as on 14.5.97 while according to the DW. 1's statement the last balance in his account was Rs. 69,160/-. This is completely a misreading evidence. Ld. Judge overlooked the fact that as per evidence of P. W. 3 and as per Ext. A payment of Rs. 1,85,000/- was made in five instalments and this payment was made between 27.2.97 and 28.4.97 through pay orders and one cheque. Thus existence of balance in the current account of the accused company to the tune of Rs. 1310.27 as on 14.5.97 does not lead the complainant anywhere because admittedly after 28.4.97 no payment was made and if on 14.5.97 there was a balance of Rs. 1310.27 it did not have the effect of negating payment of Rs. 1,85,000/- in the intervening period. Again balance of Rs. 69,160/- has no nexus with the amount in the current account of Rs. 1310.27 as on l4.5.97. The balance of Rs. 69,160/- as per Ext. Band Ext. C is the balance of the amount to be paid in favour of the complainant. Therefore while the learned Magistrate has not at all appreciated oral and documentary evidence, learned Addl. Sessions Judge has totally misread evidence and there was no critical analysis of oral and documentary evidence.
9. In MMTC Ltd. and Anr. v. Medchi Chemicals & Pharma (P) Ltd. and Anr. reported in 2002 Cr.LJ 266, it has been held that if the accused shows that in his account there was sufficient fund to clear the amount of the cheque at the time of presentation of the cheque for encashment at the drawer bank and that stop payment notice had been issued because of other valid causes including that there was no existing debt or liability at the time of presentation of the cheque for encashment then offence under Section 138 would not be made out. Here in the instant case bank's memo was 'stop payment' and the evidence, oral and documentary, as discussed above would tend to show in unmistakable terms that at the time of presentation of the cheque for encashment the existing liability was not to the extent of Rs. 2,54,160/-. My attention has been drawn to a decision in Angu Parameshwari Textiles v. Sri Rajam & Co. reported in 2001 DCR 648, wherein it has been held by the Madras High Court that when the amount of the cheque is more than the amount of the debt due, Section 138 cannot be attracted. Here in the reported case it was held that though the original cheque was of an amount for Rs. 4,68,581/- acceptance of divorce suits of money pursuant to the issuance of cheque and presentation of the cheque after such payments at a later date does not constitute offence under Section 138 of the NI Act.
10. According to Ms. Sanyal, the reason for not presentation of the cheque immediate after 24.2.97 is not far to seek. According to her, pursuant to the request to the complainant for not presenting the cheque because of assurance of making payments by instalments the complainant did not present the cheque immediate after 24.2.97. The submission of Ms. Sanyal cannot be rejected. In the reply dated 23.6.97 (Ext. 1) to the demand notice the accused reminded the complainant that on getting permission from the complainant the accused started making payment in instalments and the last instalment was paid on 28.4.97 and when after 28.4.97 the complainant found that the full amount had not yet been paid he then presented the cheque. It is not difficult to decipher that there was an agreement or understanding between the parties that even though the cheque was issued on 24.2.97 the complainant would not present the cheque and in fact the complainant did not present the cheque pursuant to such agreement and when such was the understanding the complainant should not have presented the cheque. In Voruganti Chinna Gopaiah & etc. v. Godavari Fertilizer & Chemicals Ltd. and Anr. reported in 1999 Cr.LJ 1184, it has been held by Andhra Pradesh High Court that when fact showed that though cheque was issued towards payment of outstanding amount there was subsequent agreement by which complainant agreed to receive the amount in instalments the complaint for dishonourment of the cheque subsequent to the date of the agreement is not maintainable. Complainant in this instant case permitted the accused thus to deposit by way of instalments which is while he did not present the cheque between 23.4.97 and 13.5.97 and it was only when after payment of Rs. 1,85,000/- in five instalments that no further payment was made of the balance amount the accused then presented the cheque. In view of the decision in 2001 DCR 648 (supra) when the amount of cheque is more than the amount of the debt due Section 138 cannot be attracted. The complainant represented by P.W. 3 did not adduce any evidence in order to counter the defence evidence of payment of Rs. 1,85,000/- towards discharge of the liability arising out of the issuance of the cheque by showing as to in connection with the which other transaction the said sum of Rs. 1,85,000/- was adjusted if the said sum of Rs. 1,85,000/- did not, according to the complainant relate to the cheque amount of Rs. 2,54,160/-. It might be argued that Exts. 6 and 6/1 make a total of Rs. 3,21,090/- and thus the total liability was to the extent of Rs. 3,21,090/- and not Rs. 2,54,160/-. But the case relates to the liability to the tune of Rs. 2,54,160/-. If for the sake of argument it is accepted that the total liability was in terms of that Exts. 6 and 6/1 Rs. 3,21,090/- then also after payment of Rs. 1,85,000/- the balance amount due falls far less than Rs. 2,54,160/-. In the circumstance, the accused instructed the bank for stopping the payment. The question therefore now arises whether the accused can be said to have been able to rebut the presumption arising out of Section 139 of the NI Act. In M.S. Narayana Menon alias Mani v. State of Kerala and Anr. reported in : 2006CriLJ4607 , wherein it was held:
Applying the said definitions of 'proved' or 'disproved' to the principle behind Section 118(a) of the Act, the Court shall presume a negotiable instrument to be for consideration unless and until after considering the matter before it, it either believes that the consideration does not exist or consider the non-existence of the consideration so probable that a prudent man ought, under the circumstances of the particular case, to act upon the supposition that the consideration does not exist. For rebutting such presumption, what is needed is to raise a probable defence. Even for the said purpose, the evidence adduced on behalf of the complainant could be relied upon.
11. In Kamala S. v. Vidyadharan M.J. and Anr. reported in 2007(1) Law Herald (SC) 865, the Hon'ble Supreme Court laid down the law that the standard of proof in discharge of the burden in terms of Section 139 of the Act being of preponderance of a probability', the inference therefore can be drawn not only from the materials brought on record but also from the reference to the circumstances upon which the accused relies upon. Categorically stating that the burden of proof on accused is not as high as that of the prosecution, it was held that the presumption drawn under a statue has only evidentiary value and presumption drawn in respect of one fact may be an evidence even for the purpose of drawing presumption under another. It was held that the presumption is a legal or factual assessment drawn from existence of certain facts. Thus having regard to the facts and circumstances as well as evidence on record I am of the considered judgment that the case of the complainant could not be proved beyond any manner of doubt.
12. Thus, I am unable to persuade myself to agree to the finding of the Id. Addl. Sessions Judge while at the same time I am quite conscious that the Revisional Court has to be extremely cautious in disturbing the finding of fact arrived at by the lower Courts but when the finding of the lower Courts is not on appreciation of evidence and there is mistake and absurdity on the face of the record at all there is no other option left with the Revisional Court but to disturb the finding.
13. In view of the aforesaid analysis of facts and circumstances of the case as well as evidence on record I am of the considered judgment that the judgment and order of the Id. Addl. Sessions Judge suffered from legal infirmity in this that the finding is not only legally erroneous but patently untenable on the face of evidence on record. Consequently the judgment and order of the Id. Magistrate wherein there is absolutely no assessment of evidence is equally untenable.
14. The application, therefore, is allowed. The judgment and order of the Id. Addl. Sessions Judge and that of the Id. Metropolitan Magistrate, 11th Court, Calcutta are set aside. The accused is found not guilty of the offence punishable under Section 138 of the NI Act and is acquitted of the charge.
15. A copy each of the judgment and order shall be sent to the Id. Metropolitan Magistrate, 11th Court, Calcutta with reference to Case No. C/1702 of 1997 and to the Id. Addl. Sessions Judge, 5th Fast Track Court, Calcutta with reference to criminal appeal No. 89/2001.
16. Urgent xerox certified copy, if applied for, shall be given.