BRATINDRANATH BANERJEE Vs. HITEN P DALAL

JUDGEMENT

(1.) THIS is a private complaint filed by the Standard Chartered bank (hereinafter for brevity's sake referred to as 'the said Bank') through its Director one Mr. Bratindranath Banerjee against the accused Mr. Hiten R Dalai alleging an offence under Section 138 of Negotiable Instruments Act. It is the case of the prosecution that the accused had issued to the said Bank four cheques, viz. , (1) cheque no. 985203 dated 24th December, 1991 for Rs. 27 crores (Ex. B) : (2) Cheque No. 985204 dated 26th December, 1991 for Rs. 14. 50 crores (Ex. D); (3) cheque No. 989897 dated 17th February, 1992 for Rs. 17 crores (Ex. D); and (4) cheque No. 023423 dated 27th March, 1992 for Rs. 19,95,75,000/- (Ex. E ). It is the case of the prosecution that these cheques were given in discharge of the liability of the accused to the said Bank arising from differences in the Contracts Rates and Delivery Rates in transactions undertaken at the instance of the accused. It is the case of the prosecution that these cheques when presented were dishonoured for reason 'not Arranged For'. It is the case of the prosecution that in spite of receipt of a Notice dated 1st June, 1992, the accused has failed to pay the amounts of the said cheques within 15 days thereafter. It is the case of the prosecution that the accused has thus committed an offence punishable under Section 138 of the Negotiable Instruments Act.

(2.) AFTER the charge was framed, the accused pleaded not guilty. He has taken up the defence that the complaint is not maintainable and/or is barred under section 142 (a) of the Negotiable Instruments Act. He also contends that this Court has no jurisdiction to entertain and try this complaint. It is also the case of the accused that the charge as framed is not proper inasmuch as it does not set out the liability in discharge of which the cheques are supposed to have been given and the charge does not state that the trial is in respect of the offences in securities committed between 1st April, 1991 and 6th June, 1992. The defence is also of total denial of liability as alleged or at all. It is denied that the accused was concerned with the indicted transactions. It is the case of the accused that the cheques were given for intended deals which never materialised and not in discharge of liability as indicated or any liability. It is also the defence of the accused that he was unable to pay because he became a Notified party before the expiry of 15 days from the receipt of the notice. He thus pleads impossibility of performance. It is also the defence of the accused that the case of the prosecution inherently militates against the presumption of liability as indicated or at all. It is the case of the accused that the presumption, if any, has been rendered sterile from its inception. It is also the case of the defence that no prosecution in respect of a fraud which was committed with the connivance of the complainant can be maintainable. During arguments it was also submitted that certain documents taken on record be remarked and/or be not relied upon by Court.

(3.) THE main points for determination which, therefore, arise for consideration by the Court are :