Calcutta HC Sets Aside Imprisonment in NI Act Case After Finding Accused Was Arraigned for a Completely Different Cheque

Justice Uday Kumar found that recording a plea for a wrong cheque number and an inflated amount under Section 251 CrPC is an incurable structural defect, not a typographical error.

The High Court at Calcutta has allowed, in part, a criminal revision filed by Shri Sudipta Ghosh, a practicing Chartered Accountant convicted under Section 138 of the Negotiable Instruments Act, 1881, setting aside his sentence of six months’ simple imprisonment. Justice Uday Kumar, sitting singly, held that the trial court had arraigned the petitioner under Section 251 of the Code of Criminal Procedure, 1973 for an entirely different cheque — bearing a different number and reflecting a liability three times the actual amount in dispute — and that this error was not a curable irregularity but a fundamental breakdown of due process. The compensation of Rs. 3,00,000/- already deposited by the petitioner during the revisional proceedings was affirmed and directed to be paid out to the complainant.

The Cheque Dishonour Case and Its Procedural History

The dispute originated with a private criminal complaint filed by Chandana Pal before the Chief Metropolitan Magistrate, Kolkata, on 5 July 2006. The complainant alleged that she had extended a friendly loan of Rs. 1,50,000/- to Sudipta Ghosh via an account payee cheque dated 12 May 2003, drawn on Allahabad Bank. The petitioner acknowledged the loan through a formal money receipt of the same date (Exhibit 4), and the cheque was cleared from the complainant’s account on 16 May 2003.

To repay the debt, the petitioner issued a cheque bearing number 169190 dated 12 March 2006 for Rs. 1,50,000/- (Exhibit 1), drawn on Union Bank of India, Canning Street Branch. When the complainant presented this cheque for clearance on 6 May 2006, it was returned unpaid on 8 May 2006 with the bank remark “insufficient fund” (Exhibit 2). The complainant was informed of the dishonour on 10 May 2006.

A statutory demand notice dated 17 May 2006 was issued through the complainant’s advocate by Speed Post with Acknowledgement Due. The postal acknowledgement card (Exhibit 3/2) showed delivery at the petitioner’s office address on 24 May 2006, where an office assistant received it on his behalf. The petitioner did not clear the dues within the statutory fifteen-day period, prompting the complaint before the Chief Metropolitan Magistrate. The matter was transferred to the 16th Court of the Metropolitan Magistrate for trial.

Process was issued under Section 138 of the Act of 1881. The petitioner surrendered on 11 July 2007 and was admitted to court bail. On 27 September 2019, the Metropolitan Magistrate convicted him and directed six months’ simple imprisonment along with compensation of Rs. 3,00,000/- to the complainant under Section 357(3) of the Code, with a further three months’ simple imprisonment in default. The Additional District and Sessions Judge, 1st Fast Track Court, Bichar Bhawan, Calcutta, affirmed this judgment on 28 June 2022 in Criminal Appeal Case No. 01 of 2020. The present revisional application was filed before the High Court under Section 401 read with Section 482 of the Code.

The Plea Sheet Discrepancy at the Core of the Challenge

Mr. Debabrata Acharyya, appearing for the petitioner, drew the Court’s attention to the original plea form dated 29 March 2008. That document showed that the learned trial Magistrate had recorded the substance of accusation with reference to Cheque No. 901536 dated 27 March 2006 for Rs. 5,00,000/- — a transaction that appears nowhere in the complaint, the evidence, or any prosecution exhibit. The actual instrument under prosecution was Cheque No. 169190 for Rs. 1,50,000/-. The petitioner was therefore compelled to plead to a fictional liability.

Counsel relied on two decisions of the Calcutta High Court: 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, to argue that this failure to comply with Section 251 of the Code was an incurable procedural illegality causing grave prejudice to the accused.

The petitioner also argued that the underlying debt was time-barred because three years had elapsed between the loan disbursement in May 2003 and the demand notice in May 2006. He further relied on K. Prakashan v. P.K. Surenderan (2008) 1 SCC (Crl) 200, contending that since the complainant admitted under cross-examination that she was unemployed and had received the money from her father, the non-examination of her father was fatal to the prosecution. As an alternative prayer, noting that he had already deposited Rs. 3,00,000/- pursuant to an interim order of this Court dated 15 September 2022, he relied on Kalamani Tex & Anr. v. P. Balasubramanian (2021) 5 SCC 283 to seek deletion of the imprisonment sentence.

Mr. Debarshi Brahma, appearing for the complainant, resisted the revision on all grounds. He contended that the discrepancy in the plea sheet was nothing more than a minor typographical error curable under Section 465 of the Code, and that the petitioner was fully aware of the true case he was facing throughout the trial. He submitted that the admitted signature on the cheque activated the reverse onus under Sections 118 and 139 of the Act of 1881, and that the defense had led no evidence to rebut the statutory presumption. On financial capacity, he pointed to the bank account statement of the complainant (Exhibit 5), and on service of notice, he invoked the presumption under Section 27 of the General Clauses Act, 1897.

How the Court Reasoned on the Section 251 Defect

Justice Uday Kumar identified the central question as whether the mismatch between the transaction put to the accused during arraignment and the instrument actually under prosecution struck at the legality of the trial.

The Court set out the purpose of Section 251 of the Code in a summons trial: the provision is the statutory surrogate for a formal charge, and its function is to explicitly apprise the accused of the precise allegations so he can consciously shape his defence. The Court quoted the statutory command that “the particulars of the offense of which he is accused shall be stated to him.”

Applying this to the record, Justice Kumar found that the plea sheet of 29 March 2008 recorded Cheque No. 901536 dated 27 March 2006 for Rs. 5,00,000/-, whereas the subject matter of the complaint was Cheque No. 169190 for Rs. 1,50,000/- — a completely different instrument for a completely different sum. The Court declined to characterise this as a typographical error curable under Section 465 of the Code. It drew a clear distinction between correcting a minor clerical slip and confronting an accused with a fabricated financial liability: the petitioner was legally called upon to defend himself against a five-lakh rupee transaction but was ultimately tried and convicted for a one-and-a-half-lakh rupee transaction.

Relying on Dilip Kumar Das and Natendra Nath Giri, the Court held that an omission to state the correct particulars of the offence goes to the root of the matter and vitiates the trial. The petitioner was never formally arraigned for the specific instrument that led to his conviction. Such a breakdown, the Court held, cannot be cured under Section 464 or 465 of the Code.

Financial Capacity, Reverse Onus, and the Remaining Arguments

The Court addressed the reverse onus separately. It accepted that once the petitioner admitted his signature on the cheque, the presumption under Section 139 of the Act of 1881 was properly engaged, citing Rangappa v. Sri Mohan (2010) 11 SCC 441. However, it noted that this presumption is rebuttable by a preponderance of probabilities on the basis of materials already on record.

P.W.1 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.” The prosecution did not examine her father. The Court applied the K. Prakashan framework and found that this non-examination created a significant evidentiary gap. An additional procedural defect was noted: the trial court had failed to put to the petitioner during his Section 313 CrPC examination the crucial circumstance regarding the source of the funds.

The limitation argument, however, did not succeed. The Court held that the petitioner’s issuance of Cheque No. 169190 on 12 March 2006 constituted a valid written acknowledgment of the debt under Section 18 of the Limitation Act, 1963, resetting the limitation period. The debt was alive and enforceable when the cheque was presented.

On service of notice, the Court held that since the demand notice was dispatched by Speed Post with Acknowledgement Due to the petitioner’s verified office and bail bond address, service was legally presumed under Section 27 of the General Clauses Act, 1897. Receipt by an office assistant did not invalidate service, relying on C.C. Alavi Haji v. Palapetty Muhammed (2007) 6 SCC 555.

Why Remand Was Rejected and the Sentence Deleted

Justice Kumar acknowledged that a breakdown at the Section 251 stage would ordinarily warrant setting aside the conviction and remanding the matter for a fresh trial from the stage of the plea. He declined to do so on account of the age of the litigation. The complaint was filed in 2006; subjecting the parties to a fresh trial after twenty years would cause undue hardship and run counter to judicial efficiency.

The Court also weighed the fact that pursuant to its interim order of 15 September 2022, the petitioner had deposited the entire compensation amount of Rs. 3,00,000/- into the Judicial Cash Section of the trial court as a condition for staying execution of his sentence. The deposited sum is double the value of the original cheque of Rs. 1,50,000/-.

Drawing on Kalamani Tex, the Court observed that Section 138 of the Act of 1881 is an economic statute designed to provide financial restitution rather than retribution. Full restitution having been made, and the trial being vitiated by structural defects, an active term of imprisonment would serve no valid judicial purpose after twenty years.

Order

CRR 3434 of 2022 was allowed in part by Justice Uday Kumar on 15 July 2026. The judgment and order dated 28 June 2022 of the Additional District and Sessions Judge, 1st Fast Track Court, Bichar Bhawan, Calcutta, in Criminal Appeal Case No. 01 of 2020 — which had affirmed the conviction and sentence passed by the Metropolitan Magistrate, 16th Court, Calcutta, in Complaint Case No. 6464 of 2006 — was modified as follows:

• The sentence of six months’ simple imprisonment imposed on Sudipta Ghosh is set aside.
• The compensation of Rs. 3,00,000/- under Section 357(3) of the Code is affirmed.
• The amount already deposited by the petitioner in the Judicial Cash Section of the trial court is treated as full satisfaction of the compensation order.
• The complainant, Chandana Pal, is at liberty to withdraw the entire Rs. 3,00,000/- from the Judicial Cash Section upon proper identification, without further conditions.
• The petitioner is discharged from his bail bonds and the criminal proceedings against him stand closed.

No order as to costs was made. All connected applications were disposed of and interim orders vacated. The trial court record is to be sent down forthwith along with a copy of the judgment for immediate compliance.