Calcutta High Court (Appellete Side)
Shri Sudipta Ghosh vs State Of West Bengal & Anr on 15 July, 2026
IN THE HIGH COURT AT CALCUTTA
CRIMINAL REVISIONAL JURISDICTION
APPELLATE SIDE
PRESENT:
THE HON'BLE JUSTICE UDAY KUMAR
CRR 3434 OF 2022
SHRI SUDIPTA GHOSH
-VS-
STATE OF WEST BENGAL & ANR.
For the Petitioner : Mr. Debabrata Acharyya
Mr. Sital Samanta
For the Opposite Party No.2 : Mr. Debarshi Brahma
Mr. Sourav Mondal
Mr. A. Bhuiya
Mr. S. Maity
Mr. S. Banik
Mr. R. Mondal
Reserved on : 09.06.2026
Pronounced on : 15.07.2026
UDAY KUMAR, J.: -
INTRODUCTION
1. The legal correctness of a concurrent judgment of conviction and
sentence under Section 138 of the Negotiable Instruments Act, 1881
(hereinafter referred to as the Act of 1881) has been called into question
in this revisional application. The petitioner, Shri Sudipta Ghosh, has
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preferred this application under Section 401 read with Section 482 of
the Code of Criminal Procedure, 1973 (hereinafter referred to as the
Code), assailing the judgment and order dated 28.06.2022 passed by the
learned Additional District and Sessions Judge, 1st Fast Track Court,
Bichar Bhawan, Calcutta, in Criminal Appeal Case No. 01 of 2020.
2. By the impugned judgment, the learned first appellate court affirmed the
judgment of conviction and sentence dated 27.09.2019 delivered by the
learned Metropolitan Magistrate, 16th Court, Calcutta, in Complaint
Case No. 6464 of 2006 (T.R. No. 638 of 2006), whereby the petitioner
was sentenced to suffer simple imprisonment for six months and to pay
compensation to the tune of Rs. 3,00,000/- to the complainant under
Section 357(3) of the Code, in default of which he was ordered to
undergo simple imprisonment for a further term of three months.
FOUNDATIONAL FACTS
3. The prosecution narrative begins with a private criminal complaint
instituted by the opposite party no. 2, Chandana Pal. It is the case of the
complainant that she maintained a close, sibling-like relationship with
the petitioner, who happens to be a practicing Chartered Accountant.
Yielding to a personal request by the petitioner, the complainant
extended a friendly loan accommodation of Rs. 1,50,000/- via an
account payee cheque bearing number 103293 dated 12.05.2003, drawn
on Allahabad Bank. This transaction allegedly took place in the presence
of one Ramendra Nath Sadhukhan (P.W.3). In acknowledgement of the
receipt of the cheque, the petitioner executed a formal money receipt
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dated 12.05.2003 (Exhibit 4). The loan cheque was subsequently cleared
and debited from the account of the complainant on 16.05.2003.
4. In order to discharge this subsisting debt, the petitioner subsequently
issued a repayment cheque bearing number 169190 dated 12.03.2006
for the sum of Rs. 1,50,000/- (Exhibit 1) drawn on the Union Bank of
India, Canning Street Branch. The complainant presented the
instrument to her banker for clearance on 06.05.2006, but the same
was returned unpaid on 08.05.2006 with the bank remark "insufficient
fund" via a bank return memo (Exhibit 2). The complainant was
intimated of the dishonour on 10.05.2006.
5. Aggrieved by the non-payment, the complainant, through her advocate,
issued a statutory demand notice dated 17.05.2006 (Exhibit 3) by Speed
Post with Acknowledgement Due (A/D) on 23.05.2006 (Exhibit 3/1). The
postal acknowledgement card (Exhibit 3/2) indicates that the notice was
delivered at the office address of the petitioner on 24.05.2006 and
received by an office assistant on his behalf. Upon the petitioner's failure
to liquidate the liability within the statutory period of fifteen days, the
complainant filed the present complaint before the learned Chief
Metropolitan Magistrate, Kolkata, on 05.07.2006. The matter was
thereafter transferred to the 16th Court of the Metropolitan Magistrate
for trial and disposal.
6. Process was issued against the petitioner under Section 138 of the Act of
1881. The petitioner surrendered on 11.07.2007 and was admitted to
court bail. On 29.03.2008, the substance of accusation was read over
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and explained to the petitioner, to which he pleaded not guilty and
claimed to be tried.
7. To prove her case, the complainant examined three witnesses: herself as
P.W.1, Sub-Inspector Sonam Lama of Taltala Police Station as P.W.2,
and Ramendra Nath Sadhukhan as P.W.3. Various documents were
exhibited on behalf of the prosecution (Exhibits 1 to 5). The defense,
during the cross-examination of the prosecution witnesses, introduced a
certified copy of the FIR and written complaint in Taltala P.S. Case No.
85 dated 09.07.2006, which was marked as Exhibit A. The petitioner
was examined under Section 313 of the Code on 28.01.2019, where he
admitted his signatures on the cheque and the money receipt, but
disclaimed any liability, asserting that he had left blank, signed cheques
and office papers with his friend, one Tapas Paul, for income tax
purposes, which had been subsequently misused. The petitioner did not
lead any defence evidence.
8. Upon conclusion of the trial, the learned Magistrate convicted and
sentenced the petitioner, which was subsequently upheld in appeal,
giving rise to the present revisional proceeding.
SUBMISSIONS
9. Mr. Debabrata Acharyya, the learned counsel appearing on behalf of the
petitioner, has launched a formidable structural challenge against the
concurrent judgments of the courts below. He contends that the trial
itself stands vitiated due to a fundamental breakdown of procedural due
process at the very inception. By drawing the attention of this Court to
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the original plea form dated 29.03.2008, he highlights that the learned
trial Magistrate arraigned the petitioner for an entirely foreign
transaction, specifically Cheque No. 901536 dated 27.03.2006 for an
amount of Rs. 5,00,000/-. He underscores that while the entire
complaint, evidence, and prosecution documents is strictly concerned
with Cheque No. 169190 for Rs. 1,50,000/-, the petitioner was forced to
plead to a fictional liability of five lakh rupees. Relying upon the
decisions of this Court in Dilip Kumar Das & Anr. v. The State of West
Bengal (2000) C. Cr LR (Cal) 460 and Natendra Nath Giri v. State of West
Bengal (2001) C. Cr LR (Cal) 32, he argues that this failure to comply
with the mandatory provisions of Section 251 of the Code constitutes an
incurable procedural illegality that has caused grave prejudice to the
petitioner.
10. It is further submitted by the learned counsel for the petitioner that the
underlying debt was patently time-barred under the Limitation Act,
1963, since a gap of three years had elapsed between the original
disbursement of the loan in May 2003 and the issuance of the demand
notice in May 2006. Furthermore, placing reliance on the decision of the
Supreme Court in K. Prakashan v. P.K. Surenderan (2008) 1 SCC (Crl)
200, he argues that since the complainant admitted under cross-
examination that she was an unemployed lady and had received the
money from her father, the non-examination of her father is fatal to the
prosecution's case for establishing financial capacity. Alternatively, he
submits that in terms of the interim order passed by this Court on
15.09.2022, the petitioner has already deposited the entire
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compensation sum of Rs. 3,00,000/- in the lower court, and invoking
the ratio of Kalamani Tex & Anr. v. P. Balasubramanian (2021) 5 SCC
283, he prays that the substantial sentence of imprisonment be set
aside.
11. Conversely, Mr. Debarshi Brahma, the learned counsel appearing for the
opposite party no. 2, strongly refutes these submissions. He argues that
the discrepancy in the cheque number and the amount recorded in the
plea sheet on 29.03.2008 is nothing more than a minor typographical
error and an administrative oversight. He contends that such an error is
a curable irregularity under Section 465 of the Code, as the petitioner
was fully aware of the true nature of the case he was meeting
throughout the trial.
12. He further argues that once the signature on the cheque is admitted, the
reverse onus clauses under Sections 118 and 139 of the Act of 1881
immediately apply, and the defense has failed to adduce any evidence to
displace this statutory presumption. He submits that financial capacity
stands objectively proven by the bank account statement of the opposite
party no. 2 (Exhibit 5), and that the service of notice was properly
presumed under Section 27 of the General Clauses Act, 1897. He thus
prays for the dismissal of the revisional application.
DISCUSSION
13. The primal question which falls for determination before this Court is
whether the stark mismatch between the transaction put to the accused
during his arraignment under Section 251 of the Code and the actual
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instrument under prosecution strikes at the core of the trial's legality,
and whether the statutory presumptions under the Act of 1881 stand
properly applied or rebutted.
14. In a criminal trial governed by the summons procedure, compliance with
Section 251 of the Code is the cornerstone of a fair trial. The provision
commands that "when the accused appears or is brought before the
Magistrate, the particulars of the offense of which he is accused shall be
stated to him, and he shall be asked whether he pleads guilty or has any
defense to make, but it shall not be necessary to frame a formal charge.".
15. It is settled law that Section 251 of the Code is not a mere empty
formality or a routine bureaucratic box to be checked by the trial court.
It serves as a vital statutory surrogate for a formal charge. Its
overarching purpose is to explicitly apprise the accused of the precise
allegations and facts levelled against him, so that he may consciously
shape and prepare his defence. If a Magistrate records the substance of
accusation for an entirely separate instrument, proclaiming a liability of
five lakh rupees linked to a completely different cheque number and
demands the accused to plead to it, the procedural framework of the
trial collapses.
16. Let me test the facts of the present case on this anvil. A review of the
lower court record reveals an alarming departure from this rule. The
formal plea sheet dated 29.03.2008 records that the learned Magistrate
examined the petitioner for the dishonour of Cheque No. 901536 dated
27.03.2006 for a sum of Rs. 5,00,000/-. The actual subject matter of the
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complaint, namely Cheque No. 169190 for Rs. 1,50,000/-, was absent
from the arraignment.
17. I cannot accept the argument of the respondent that this is a minor,
curable typographical error under Section 465 of the Code. There is a
vast difference between correcting a minor clerical slip and confronting
an accused with a completely fabricated financial liability. The petitioner
was legally called upon to defend himself against a five-lakh rupee
transaction, but he was ultimately tried and convicted for a one-and-a-
half-lakh rupee transaction.
18. As eloquently held by this Court in Dilip Kumar Das (supra), when the
trial court merely chants provisions of law or misstates the core
parameters of the accusation under Section 251, it amounts to a non-
compliance that prejudices the accused from the outset. In Natendra
Nath Giri (supra), this Court reiterated that an omission to state the
correct particulars of the offense goes to the root of the matter and
vitiates the trial. The petitioner has been severely prejudiced by this
structural defect, as he was never formally arraigned for the specific
instrument that led to his conviction. Such a fundamental breakdown of
due process cannot be cured under Section 464 or 465 of the Code.
19. Regarding the issue of financial capacity and the reverse onus under
Section 139 of the Act of 1881, the legal position is clear. Once the
signature on the cheque is admitted, the court must presume that the
holder received the instrument for the discharge of a legally enforceable
debt [vide Rangappa v. Sri Mohan (2010) 11 SCC 441]. However, this
presumption is rebuttable by a preponderance of probabilities, which
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can be drawn from the materials already on record and the cross-
examination of the complainant.
20. In K. Prakashan (supra), the Supreme Court ruled that where a
complainant claims to be an unemployed individual who secured the
loan funds from a relative, but fails to examine that relative or produce
clear documentary proof of the source, the initial statutory presumption
can be successfully displaced.
21. In the present case, P.W.1 clearly stated during cross-examination: “I am
an unemployed lady… my father gave this amount… I have not filed any
document to prove that I inherited the amount from my father.” Despite
this explicit challenge to her independent financial capacity, the
prosecution chose to withhold the evidence of her father. Furthermore, a
review of the Section 313 Cr.P.C. examination shows that the trial court
failed to put this crucial circumstance regarding the source of the funds
to the petitioner, which constitutes an independent procedural defect.
22. However, I find no merit in the petitioner’s remaining arguments
regarding limitation and the service of notice. Although the loan was
originally disbursed in May 2003, the petitioner issued the impugned
cheque on 12.03.2006. Under Section 18 of the Limitation Act, 1963, the
delivery of a signed cheque operates as a valid written acknowledgment
of a debt, resetting the limitation period. Therefore, the debt was alive
and enforceable when the cheque was presented.
23. Similarly, under Section 27 of the General Clauses Act, 1897 since the
demand notice was dispatched to the petitioner’s verified office and bail
bond address, service is legally presumed. The fact that it was accepted
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by an office assistant does not invalidate service (vide C.C. Alavi Haji v.
Palapetty Muhammed (2007) 6 SCC 555).
CONCLUSION
24. From the exhaustive discussion undertaken above, the following legal
conclusions are arrived at:
(i) First: The recording of a plea under Section 251 of the Code
based on a completely different cheque number and an inflated
amount constitutes a structural defect that violates basic due
process. Such a fundamental error cannot be treated as a
curable irregularity under Section 465 of the Code, and it
invalidates the trial’s legal foundation.
(ii) Second: While the delivery of a signed cheque within three years
of a loan satisfies the acknowledgment requirements of Section
18 of the Limitation Act, the complainant’s failure to examine
the source witness (her father) to support her claimed financial
capacity creates a significant evidentiary gap under the K.
Prakashan framework, which was further complicated by the
defective Section 313 CrPC examination.
(iii)Third: The Act of 1881 is an economic statute designed to
provide financial restitution rather than simple retribution. As
observed by the Supreme Court in Kalamani Tex (supra), when
an accused complies with judicial directives by depositing
double the cheque amount as compensation, the financial
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injury to the complainant is fully redressed, and an active term
of imprisonment becomes unnecessary.
25. The dynamic of the prosecution and the re-evaluation of the record
reveal that the trial court’s proceedings were compromised from the very
beginning. A criminal trial that convicts an individual for a transaction
completely different from the one put to him during his formal
arraignment cannot be sustained under our constitutional scheme of
due process. The structural defect at the Section 251 CrPC stage strikes
at the root of the matter and invalidates the concurrent judgments of
conviction.
26. Ordinarily, a breakdown of procedure at the Section 251 stage would
compel this Court to set aside the conviction and remand the matter for
a fresh trial from the stage of the plea. However, this litigation began
twenty years ago, in 2006. Subjecting the parties to a fresh trial after
two decades would cause undue hardship and run counter to the
interests of judicial efficiency.
27. This Court must take into account the subsequent steps taken during
these revisional proceedings. On 15.09.2022, this Court directed the
petitioner to deposit the entire compensation amount of Rs. 3,00,000/-
before the trial court as a condition for staying the execution of his
sentence. The petitioner has fully complied with this direction and
deposited the money into the judicial cash section of the lower court.
28. The offense under Section 138 of the Act of 1881 is an economic offense
intended to provide financial restitution rather than simple punishment.
By depositing the full Rs. 3,00,000/—double the value of the original
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cheque–the petitioner has fully satisfied the financial claims of the
complainant. In light of this full restitution, and given the significant
procedural errors in the trial, imposing an active prison sentence after
twenty years would serve no valid judicial purpose.
29. Accordingly, the Criminal Revisional Application being 3434 of 2022, is
allowed in part.
30. The impugned judgment and order dated 28.06.2022 passed by the
learned Additional District and Sessions Judge, 1st Fast Track Court,
Bichar Bhawan, Calcutta, in Criminal Appeal Case No. 01 of 2020,
which affirmed the order of conviction and sentence passed by the
learned Metropolitan Magistrate, 16th Court, Calcutta, in Complaint
Case No. 6464 of 2006, is hereby modified as follows:
i. The sentence of six months of simple imprisonment imposed
upon the petitioner, Sudipta Ghosh, is set aside.
ii. The order for compensation to the tune of Rs. 3,00,000/-
(Rupees Three Lakhs only) under Section 357(3) of the Code is
affirmed.
iii. Since the petitioner has already deposited the full amount of Rs.
3,00,000/- into the Judicial Cash Section of the learned Trial
Court, the said deposit shall be treated as full satisfaction of the
compensation order.
iv. The opposite party no. 2/complainant, Chandana Pal, is at
absolute liberty to withdraw the entire deposited amount of Rs.
3,00,000/- from the Judicial Cash Section of the learned Trial
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conditions.
v. The petitioner is discharged from his bail bonds, and the
criminal proceedings against him stand closed.
31. The Trial Court Record (T.C.R.) shall be sent down to the learned courts
below forthwith along with a copy of this judgment for immediate
compliance.
32. All connected applications stand disposed of.
33. Interim orders stand vacated.
34. There shall be no order as to costs.
35. Case diary, if any, be returned forthwith.
36. Urgent photostat certified copy of this judgment, if applied for, be
supplied to the parties upon compliance with all requisite formalities.
(Uday Kumar, J.)
