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2004 DIGILAW 126 (CAL)

RAMPRASAD SAHA v. KAMAL KUMAR TALUKDAR

2004-02-20

ASIT KUMAR BISI

body2004
A. K. BISI, J. ( 1 ) THE instant revision application arises out of the judgment and order passed by the learned Additional Sessions Judge, Alipurduar on 4. 7. 01 in Criminal Appeal No. 2 of 1999 (A ). By the impugned judgment and order the learned Additional Sessions Judge, Alipurduar dismissed the criminal appeal preferred by the present petitioner as appellant and affirmed the judgment and order passed by the SDJM, Alipurduar on 27. 8. 99 in C. R. Case No. 506/97 whereby the learned SDJM found the accused guilty of the offence punishable under section 138 of the Negotiable Instruments Act, convicted him of the said offence and sentenced him to suffer Rigorous Imprisonment for three months and to pay fine of Rs. 72,000/- in default to suffer further Rigorous Imprisonment for three months. ( 2 ) THE facts anteior to filing of the instant revision application may succinctly be stated thus. On 19. 12. 97 the complainant Kamal Kumar Talukdar presently O. P. No. 1 lodged a petition of complaint under section 138 of the Negotiable Instruments Act, hereinafter referred to as the Act, alleging that the accused Ramprasad Saha presently the petitioner purchased some commodities from the shop of the complainant on 22. 4. 97 and price of the commodities so purchased was Rs. 38,552/ -. As alleged by the complainant, the accused paid Rs. 2552/- in cash and issued a post dated cheque for the balance of Rs. 36,000/- in favour of the complainant drawn on Uttarbanga Keshetriya Gramin Bank, Totopara Branch. The cheque is alleged to have been handed over by the accused to the complaint on 22. 4. 97 but it was dated 21. 10. 97. The complainant presented the said cheque at Central Bank of India, Coochbehar Branch but the same was dishonoured on the ground of insufficiency of fund in the Bank account of the accused. Thereupon the complainant served a notice under section 138 of the Act through his advocate on the accused by registered post demanding payment of Rs. 36,000/ -. Inspite of receipt of that notice the accused failed to pay the said amount. ( 3 ) AFTER service of summons the accused appeared in the trial Court and was examined under section 251 of the Code of Criminal Procedure. The accused pleaded not guilty to the accusation whereupon the trial proceeded. 36,000/ -. Inspite of receipt of that notice the accused failed to pay the said amount. ( 3 ) AFTER service of summons the accused appeared in the trial Court and was examined under section 251 of the Code of Criminal Procedure. The accused pleaded not guilty to the accusation whereupon the trial proceeded. On conclusion of the trial the learned trial Court found the accused guilty of the offence punishable under section 138 of the Act, convicted and sentenced him in the manner as already stated. On appeal preferred by the present petitioner as appellant the learned Additional Sessions Judge, Alipurduar upheld the order of conviction and sentence passed by the learned trial Court against the accused and dismissed the appeal whereupon the instant revision application has been preferred by the present petitioner assailing the findings of both the learned trial Court and the learned Appellate Court. The petitioner has alleged inter alia that the present O. P. No. 1 had no cause of action to file the complaint under section 138 of the Act in view of the fact that the petitioner paid Rs. 36,000/- by cash on 26. 11. 97 which was within fifteen days from the date of receipt of the demand notice from the advocate of O. P. No. 1/complainant and O. P. No. 1 granted receipt in acknowledgement of the debt accrued due to bouncing of the cheque issued by the petitioner. It has been further alleged by the petitioner that the learned Sub-Division Judicial Magistrate has no power to impose fine exceeding Rs. 5,000/- on the accused but he has imposed a fine of Rs. 72,000/- and the learned Appellate Court being Additional Sessions Judge confirmed it which is absolutely without jurisdiction and cannot be sustained in law. ( 4 ) THE sole point arising for decision is whether or not the findings of the learned trial Court resulting in conviction and sentence of the present petitioner for the offence punishable under section 138 of the Act which have been upheld by the learned Appellate Court on appeal are legally sustainable in the face of the materials on record. ( 5 ) INDISPUTABLE is the fact that the present petitioner purchased commodities worth Rs. 38,552/- and made part payment of Rs. 2,552/- in cash to the present O. P. No. 1/complainant and issued a post dated cheque for the balance of Rs. ( 5 ) INDISPUTABLE is the fact that the present petitioner purchased commodities worth Rs. 38,552/- and made part payment of Rs. 2,552/- in cash to the present O. P. No. 1/complainant and issued a post dated cheque for the balance of Rs. 36,000/- in favour of O. P. No. 1/complainant and the aid cheque was drawn on the Uttarbanga Kshetriya Gramin Bank, Totopara Branch. It transpires from the evidence of the complainant examined as PW 1 before the learned trial Court that the said cheque was handed over by the accused to him on 22. 4. 97 but it was dated 21. 10. 97. There is no dispute over issuance of the post dated cheque marked Ext. 2 by he present petitioner in favour of the present O. P. No. 1/complainant. From the materials on record it is manifestly clear that the said cheque was dishonoured due to insufficiency of fund. The evidence in this regard has elaborately been discussed by the learned trial Court in its judgment. ( 6 ) THE learned advocate for the petitioner has raised no dispute that the said cheque issued by the petitioner in favour of O. P. No. 1/complainant was dishonoured by the Bank due to insufficiency of fund in the account of the petitioner. It has, however, been urged by him that the petitioner paid the said amount of Rs. 36,000/- by cash subsequently on 26. 11. 97 which was within 15 days from the date of receipt of the demand notice from the advocate of O. P. No. 1/complainant and O. P. No. 1 granted receipt for such payment made by the petitioner for the goods supplied in full satisfaction of the claim. He has drawn my attention to the document marked Ext. B/2. Now the crux of the matter centres upon the question as to whether the document marked Ext. B/2 can be said to be a receipt against such payment alleged to have been made by the petitioner to O. P. No. 1/complainant. The learned trial Court in its order has pointed out that on this score there is no other sworn testimony than that of the accused and Ext. B/2 does not show what amount was paid, to whom and by whom and on which date. It has further been pointed out by the learned trial Court in its judgment that Ext. The learned trial Court in its order has pointed out that on this score there is no other sworn testimony than that of the accused and Ext. B/2 does not show what amount was paid, to whom and by whom and on which date. It has further been pointed out by the learned trial Court in its judgment that Ext. B/2 does not contain any date under signature of the accused and there is no explanation at all from the side of the defence why the accused at the time of making such payment of balance amount did not get back the cheque issued by him in favour of the complainant. The same view is reflected in the judgment of the learned Appellate Court. It has been pointed by the learned Appellate Court that there is nothing in the evidence of DW 1 to say that Ext. B/2 was typed in his presence nor there is anything to indicate by whom it was typed. The learned Appellate Court has further pointed out that Ext. B/2 does not indicate what amount was paid by the accused and received by the complainant. It has been observed by the learned Appellate Court that there is nothing in the evidence of DW 1 to say that Ext. B/2 was typed in his presence nor there is anything to indicate by whom it was typed. The learned Appellate Court has further pointed out that Ext. B/2 does not indicate what amount was paid by the accused and received by the complainant. It has been observed by the learned Appellate Court that Ext. B/2 does not at all reflect that payment was made by the accused and acknowledged by the complainant in respect of the transaction dated 22. 4. 97 or in compliance with the demand notice. The learned Appellate Court, as it appears, concurs with the learned trial Court in holding that this document marked Ext. B/2 is not at all a receipt of any payment or acknowledgement of any payment made by the accused in connection with the transaction dated 22. 4. 97. On close scrutiny it is hardly possible for me to interfere with such findings of the learned trial Court and the learned Appellate Court so far as Ext. B/2 is concerned. In the face of the materials on record it can hardly be believed that the document marked Ext. 4. 97. On close scrutiny it is hardly possible for me to interfere with such findings of the learned trial Court and the learned Appellate Court so far as Ext. B/2 is concerned. In the face of the materials on record it can hardly be believed that the document marked Ext. B/2 is at all a receipt granted by O. P. No. 1/complainant to the petitioner after payment of the amount of the dishonoured cheque by the petitioner to O. P. No. 1/complainant in connection with the transaction which took place on 22. 4. 97. ( 7 ) THE learned advocate for the petitioner has drawn my attention to section 139 of the Act which lays down 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. It is no doubt settled law that the presumption under section 139 of the Act is that the cheque was issued for an existing liability and the burden is on the drawer to prove that there was no liability for which the cheque was issued. The learned advocate for the petitioner has cited Suresh Budharmal Kalani @ Pappu Kalani v. State of Maharashtra reported in 1999 C Cr LR (SC)9 wherein at page 12 (para 5) the Supreme Court has held that a presumption can be drawn only from facts - and not from other presumptions - by a process of probable and logical reasoning. The concept of presumption underlying section 139 of the Act necessarily implies that the Court is bound to take the fact as proved until evidence to disprove it is adduced successfully. Section 139 of the Act leaves no room for scepticism that it is obligatory on the part of the Court to raise the presumption that cheque which has since been dishonoured by the Bank was issued for the discharge in whole or in part of any debt or other liability. Presumption under section 139 of the Act is no doubt in favour of the holder of the cheque and the accused is required to dislodge this presumption. The learned advocate for the petitioner has laid much emphasis on Ext. Presumption under section 139 of the Act is no doubt in favour of the holder of the cheque and the accused is required to dislodge this presumption. The learned advocate for the petitioner has laid much emphasis on Ext. B/2 and contended that the petitioner has discharged the burden lying on him to disprove the presumptions under sections 138 and 139 of the Act. No doubt such burden on the accused can be discharged by bringing on record the evidence which establishes the defence version with reasonable probability. In absence of any such proof presumptions under sections 138 and 139 of the Act must prevail. Reference can be made in this context to Hitan P. Dalal v. Bratindranath Banerjee reported in 2001 C Cr LR (SC) 554 on page 566-567 at para 38. ( 8 ) AS mentioned hereinabove, an abortive endeavour has been made by the present petitioner to show that he subsequently made payment of the amount of the dishonoured cheque to the present O. P. No. 1/complainant. Both the learned trial Court and the learned Appellate Court disbelieved the defence version and came to the finding that the document marked Ext. B/2 on which emphasis has been laid from the side of the defence is not at all a receipt of any payment or acknowledgement of any payment made by the petitioner in connection with the transaction dated 22. 4. 97. They have rightly done so. So the concurrent findings of guilt of the accused for the offence punishable under section 138 of the Act arrived at by the learned trial Court and the learned Appellate Court cannot be interfered with by this Court in revision. ( 9 ) SO far as the sentence is concerned it has been contended by the learned advocate for the petitioner that the learned Sub-Divisional Judicial Magistrate, Alipurduar who tried the case had no power to impose fine exceeding Rs. 5,000/- on the accused but he imposed fine of Rs. 72,000/- and the learned Appellate Court confirmed such fine which is absolutely without jurisdiction and cannot be sustained in law. As already referred to, the learned SDJM, Alipurduar sentenced the accused to suffer Rigorous Imprisonment for three months and to pay fine of Rs. 72,000/- in default to suffer Rigorous Imprisonment for further three months. There was order to pay 50% of the fine, if realised, to the complainant. As already referred to, the learned SDJM, Alipurduar sentenced the accused to suffer Rigorous Imprisonment for three months and to pay fine of Rs. 72,000/- in default to suffer Rigorous Imprisonment for further three months. There was order to pay 50% of the fine, if realised, to the complainant. The said order of sentence passed by the learned SDJM, Alipurduar has been confirmed on appeal by the learned Additional Sessions Judge, Alipurduar. The learned advocate for O. P. No. 1/complainant has contended that though no special power has been conferred by the Act upon the Judicial Magistrate, First Class to impose fine exceeding limit of Rs. 5,000/- and imposition of fine exceeding the said limit is not permissible, the Magistrate, First Class, can award compensation to the complainant by resorting to the course indicated in section 357 of the Code of Criminal Procedure for which no limit is prescribed. In support of his contention he has cited K. Bhaskaran v. Sankaran Vaidhy Balan and Anr. reported in 2000 C Cr LR (SC) 94 wherein on page 103 at para 31 the Supreme Court held as follows:- However, the Magistrate in such cases can alleviate the grievance of the complainant by making resort to section 357 (3) of the Code. It is well to remember that this Court has emphasised the need for making liberal use of that provision Hari Singh v. Sukhbir Singh, AIR 1988 SC 2177. No limit is mentioned in the sub-section and therefore, a Magistrate can award any sum as compensation. Of course while fixing the quantum of such compensation the Magistrate has to consider what would be the reasonable amount of compensation payable to the complainant. Thus, even if the trial was before a Court of a Magistrate of the First Class in respect of a cheque which covers an amount exceeding Rs. 5,000/- the Court has power to award compensation to be paid to the complainant. ( 10 ) SIMILAR is the view expressed by the Supreme Court in the subsequent decision of Pankajbhai Nagjibhai Patel v. The State of Gujarat and Anr. reported in 2001 C Cr LR (SC) 228. 5,000/- the Court has power to award compensation to be paid to the complainant. ( 10 ) SIMILAR is the view expressed by the Supreme Court in the subsequent decision of Pankajbhai Nagjibhai Patel v. The State of Gujarat and Anr. reported in 2001 C Cr LR (SC) 228. ( 11 ) APPLYING the ratio of the decisions of the Supreme Court in K. Bhaskaran (supra) and Pankajbhai Nagjibhai (supra) to the facts and circumstances of the present case and weighing pros and cons of the matter I am of the view that the amount of compensation payable by the accused to the complainant can reasonably be fixed at Rs. 36,000/- which was the amount covered by the dishonoured cheque. ( 12 ) IN the result I retain the sentence of rigorous imprisonment for three months and delete the fine portion from the sentence and direct the petitioner to pay compensation of Rs. 36,000/- to O. P. No. 1/complainant. Bail bond of the petitioner stands cancelled. The petitioner is directed to surrender before the learned trial Court to serve out the sentence of imprisonment within two months from this date failing which the learned trial Court shall take appropriate steps in accordance with law. The petitioner is directed to pay compensation of Rs. 36,000/- to O. P. No. 1/complainant within two months from this date failing which the learned trial Court shall resort to the steps enjoined by law to realise the same from the petitioner. The revision application is accordingly disposed of. Let a copy of this judgment be sent down to the learned Court below forthwith. Urgent xerox certified copy of this judgment, if applied for, be given to the parties as expeditiously as possible. Application disposed of of .