Research › Search › Judgment

Calcutta High Court · body

2005 DIGILAW 15 (CAL)

GOURANGA SARKAR v. BISWAJIT SARKAR

2005-01-13

P.N.SINHA

body2005
P. N. SINHA, J. ( 1 ) THIS appeal is directed against the judgment and order of acquittal dated 31. 7. 01 passed by the learned Judicial Magistrate, 5th Court, alipore in Case No. C-2636/ 97 (T. R. No. 797/97) under section 138 of the negotiable Instruments Act (in short N. I. Act), 1881 and acquitting the accused respondent under section 255 of the Code of Criminal Procedure (in short Code), 1973. ( 2 ) THE prosecution case was started on the basis of complaint lodged by the appellant complainant against the accused respondent in the Court of the learned Sub-Divisional Judicial Magistrate (in short SDJM) at Alipore alleging therein that he is the proprietor of Sarkar and Co. having its shop at 76/1, mahatma Gandhi Road within P. S. Thakurpukur dealing in hardware and building materials. The accused respondent took materials from his shop on credit and on account of payment of price of such materials, the accused issued three A/c payee cheques bearing Nos. 493627 dated 30. 10. 97, 493628 dated 30. 10. 97 and 493633 dated 3. 11. 97 for Rs. 30,000/-, Rs. 20,000/- and Rs. 10,000/-respectively drawn on UCO Bank, Tollygunj Branch. The appellant presented the said cheques in his bank, viz. United Bank of India, Paschim putiary Branch and all the said cheques were dishonoured with cheque returning memo dated 13. 11. 97 with endorsement 'exceeds arrangement'. On 18. 11. 97 the appellant complainant through his Advocate sent demand notice to the accused calling upon him to pay Rs. 60,000/- i. e. the amount of the cheques within 15 days from the receipt of the notice. The accused received the notice on 19. 11. 97 but he did not make payment of the said amount and accordingly, the complainant lodged the complaint. The case was transferred to the Court of the learned Judicial Magistrate, 5th Court, Alipore for trial and the learned magistrate by judgment and order dated 31. 7. 01 held that, it could not be proved that the cheques were issued by the accused and accordingly, the accused was found not guilty and was acquitted. Being aggrieved by and dissatisfied with the judgment and order of acquittal the complainant filed an application under section 378 (4) of the Code for special leave to appeal and this Court granted special leave to appeal and accordingly, this appeal was instituted against the accused respondent. Being aggrieved by and dissatisfied with the judgment and order of acquittal the complainant filed an application under section 378 (4) of the Code for special leave to appeal and this Court granted special leave to appeal and accordingly, this appeal was instituted against the accused respondent. ( 3 ) MRS. Dutta, learned Advocate for the appellant contended that the respondent is a promoter and the appellant has business of building materials. The respondent used to take building materials from the shop of the appellant on credit and in order to discharge his liability i. e. to make payment of the building materials he issued three A/c payee cheques in favour of the appellant. When the cheques were presented for encashment those were dishonoured with endorsement 'exceeds arrangement'. In spite of service of demand notice, the respondent did not make payment of the amount of the cheques, and accordingly, the complaint was filed against the respondent. The finding of the learned magistrate that the accused clearly denied giving of three cheques to complainant is a finding based on surmise and conjecture and without appreciation of evidence. The cheques were presented in Court and were lying in the case record and it was duty of the learned Magistrate to mark the cheques as exhibit. Provisions of section 391 of the Code would apply in this case and this Court can direct taking of additional evidence. P. W. 2 Indrajit Das is the officer of the bank where the appellant maintains his account and in the said bank the cheques were presented for encashment which came back with return memo 'exceeds arrangement'. P. W. 4 is an officer of the UCO Bank, Tollygunj branch in which the respondent maintained his account and the cheques were of that bank and the said cheques were sent to that bank for encashment but, the cheques were dishonoured and were returned with bank memo which is exhibit 3. There was no ground at all on the part of the learned Magistrate to disbelieve exhibit 3. Evidence of P. W. 4 reveals that as there was no sufficient fund the cheques were returned and for this reason they did not verify the signature of the respondent. There was no ground at all on the part of the learned Magistrate to disbelieve exhibit 3. Evidence of P. W. 4 reveals that as there was no sufficient fund the cheques were returned and for this reason they did not verify the signature of the respondent. The learned Magistrate arrived at a peculiar finding by observing that signature of the accused on the cheques were not proved and the said signatures were not tallied with the specimen signature of accused kept in his bank. The learned Magistrate did not realise that complainant was the holder of the cheques being presented to him by the respondent. The learned magistrate did not apply his mind to the provisions of section 118 of the N. I. Act that complainant was the holder of the cheque and presumption would be that the cheques were given to him by the respondent accused in discharge of his liability. ( 4 ) SHE further contended that the learned Magistrate did not discuss at all the other points which were necessary for giving reasons in the judgment and, order passed by the learned Magistrate without discussing point Nos. 2 to 5 as mentioned in the judgment is bad in law, and in fact, it was not a judgment at all. The learned Magistrate did not appreciate the evidence of the witnesses in accordance with law and also did not consider that in spite of receipt of demand notice the accused respondent did not make payment of the amount of the cheques. Accordingly, this is a fit case where the judgment and order of acquittal should be set aside and the criminal case should be remitted back to the learned magistrate for fresh trial and fresh decision. ( 5 ) MRS. Chanda, learned Advocate for the respondent contended that the findings of the learned Magistrate is based on evidence and materials on record. The appellant as complainant failed to make out any case on the basis of oral and documentary evidence. There was no evidence and no case as to how the complainant became holder of the cheques and accordingly no question of drawing presumption under section 118 of the N. I. Act arises in favour of the appellant. The cheques in question were not admitted in evidence and were not marked as exhibit. There was no evidence and no case as to how the complainant became holder of the cheques and accordingly no question of drawing presumption under section 118 of the N. I. Act arises in favour of the appellant. The cheques in question were not admitted in evidence and were not marked as exhibit. The demand notice was not marked as exhibit and the complainant did not take any step to prove the said documents in accordance with law. There was no convincing oral and documentary evidence before the learned Magistrate. The learned Magistrate accordingly delivered the judgment which was based on evidence on record and order of acquittal passed by the learned Magistrate was correct and legal and the said order requires no interference. ( 6 ) I have duly considered the submissions made by the learned Advocates of the parties and perused the evidence and materials on record including the lower Court Record. It is settled that the High Court should not interfere with an order of acquittal passed by the Trial Court unless there was failure of the Trial Court to appreciate the evidence properly and the finding of the trial Court was so illegal that it amounted to miscarriage of justice. The prime consideration of the Court is to ensure that miscarriage of justice is prevented. The Supreme Court in Anil Kumar vs. State of U. P. , reported in 2004 AIR SCW 5238, has observed that, "a miscarriage of justice which may arise from acquittal of the guilty is no less than from the conviction of an innocent. In a case where admissible evidence is ignored, a duty is cast upon the Appellate Court to re-appreciate the evidence where the accused has been acquitted, for the purpose of ascertaining as to whether any of the accused really committed any offence or not. Bhagban Singh and Ors. vs. State of Madhya pradesh, 2002 (2) Supreme 567 . The principle to be followed by the Appellate court considering the appeal against the judgment of acquittal is to interfere only when there are compelling and substantial reasons for doing so. If the impugned judgment is clearly unreasonable and relevant and convincing materials have been unjustifiably eliminated in the process, it is a compelling reason for interference. The principle to be followed by the Appellate court considering the appeal against the judgment of acquittal is to interfere only when there are compelling and substantial reasons for doing so. If the impugned judgment is clearly unreasonable and relevant and convincing materials have been unjustifiably eliminated in the process, it is a compelling reason for interference. " ( 7 ) UNDER this background of legal principle, it requires consideration whether in the instant matter the judgment and order of acquittal passed by the learned magistrate was proper and reasonable and whether interference by this Court is necessary. After going through the evidence and materials on record, I find that the learned Magistrate failed to appreciate the evidence and his failure was so grave that there was miscarriage of justice. The finding of the learned magistrate that evidence of P. W. 1 Gouranga Chandra Sarkar reveals that the accused denied issue of cheques is not only bad in law but, is a finding based on surmise and conjecture without consideration of evidence and failure of the learned Magistrate to appreciate the evidence in true sense. Appreciation of evidence of P. W. 1 does not reveal at all that the accused respondent denied issue of cheques by him. Suggestion given to P. W. 1 during cross-examination by defence cannot take the place of proof. There was no proper cross-examination of P. W. 1 and other witnesses. P. W. 1 in his evidence stated that the accused gave him three cheques and this evidence remained unchallenged. There was no cross-examination at all over this part of examination-in-chief of P. W. 1. Holding of cheques by P. W. 1 draws presumption under sections 118 and 139 of the N. I. Act. In examination under section 313 of the Code the accused did not deny issue of cheques. In his examination under section 313 the accused respondent admitted receipt of demand notice. The demand notice was also proved and was admitted in evidence and was marked exhibit 3. In spite of receipt of demand notice, the accused respondent did not make payment of the amount of the cheques. In his examination under section 313 when question was put to him that he gave cheques to the complainant the respondent only stated that he does not know anything and the respondent accused did not give any specific reply. In spite of receipt of demand notice, the accused respondent did not make payment of the amount of the cheques. In his examination under section 313 when question was put to him that he gave cheques to the complainant the respondent only stated that he does not know anything and the respondent accused did not give any specific reply. No specific defence case was disclosed by the respondent in his examination under section 313 of the Code that he did not issue the cheques and did not give the cheques to complainant. When no specific defence case was disclosed by the accused in his examination under section 313 of the Code and as there was no proper cross-examination of P. W. 1, finding of the learned magistrate that evidence of P. W. 1 reveals that accused denied issue of cheque is nothing but misconception of fact and law by the learned Magistrate as well as his failure to appreciate the evidence. ( 8 ) IT further appears to me that the learned Magistrate did not mark the cheques as exhibit though the cheques were lying in Court record. P. W. 1 in his evidence stated that he has filed all the papers in Court. The learned Magistrate was totally unaware of the provisions of section 294 of the Code. Section 294 of the Code makes it clear that, " (1) Where any document is filed before any Court by the prosecution or the accused, the particulars of every such document shall be included in a list and the prosecution or the accused, as the case may be, or the pleader for the prosecution or the accused, if any, shall be called upon to admit or deny the genuineness of each such document. (3) where the genuineness of any document is not disputed, such document may be read in evidence in any enquiry; trial or other proceeding under this Code without proof of the signature of the person to whom it purports to be signed provided that the Court may, in its discretion, require such signature to be proved. " lower Court Record reveals that the complainant through his lawyer by 'firisti' i. e. list of documents dated 6. 3. 99 presented in Court some of the documents including the original cheques as well as bank endorsement, postal A/d Card, etc. " lower Court Record reveals that the complainant through his lawyer by 'firisti' i. e. list of documents dated 6. 3. 99 presented in Court some of the documents including the original cheques as well as bank endorsement, postal A/d Card, etc. The original cheques are lying in case record which were filed along with list of documents on 6. 3. 99. P. W. 1 was examined on 6. 3. 99. The order sheet of the learned Magistrate dated 6. 3. 99 does not reveal that the accused or his lawyer questioned genuineness of the documents filed by the complainant in court on 6. 3. 99. The learned Magistrate by his order did not reveal that the said cheques or other documents filed on 6. 3. 99 requires proof of signature. It is clear, therefore, the learned Magistrate did not at all follow the provisions of law and was totally oblivious of provisions of section 294 of the Code. The learned magistrate had duty to examine any witness under section 311 of the Code to reveal truth for just decision of the case if he had any doubt in mind regarding issue of cheques. There was no suggestion also to P. W. 1 that the signature appearing on the cheques were not the signature of accused. When the accused or his lawyer did not dispute genuineness of the documents which were filed in court the learned Magistrate committed error by coming to the conclusion that accused denied issue of cheques. In fact, there was nothing in case record to show that the accused denied issue of cheques and, the accused did not challenge filing of the documents by the complainant. ( 9 ) THE judgment and order of the learned Magistrate is also bad in law in other respects and the learned Magistrate though framed in all five points but did not discuss points 2 to 5 at all. It is not at all a judgment as laid down in provisions of section 354 of the Code. The law requires that the judgment shall contain the point or points for determination and the decision thereon and the reasons for the decision. It is not at all a judgment as laid down in provisions of section 354 of the Code. The law requires that the judgment shall contain the point or points for determination and the decision thereon and the reasons for the decision. In the instant matter the learned Magistrate framed five points but, discussed only point No. 1 and gave reasons for the decision of point No. 1 but, he did not discuss at all the points 2 to 5 and did not assign any reason and his decision over points 2 to 5. The decision or the reasons given by him regarding point No. 1 is based on surmise and conjecture and without appreciation of evidence which have been observed in the previous paragraph. ( 10 ) THE learned Magistrate also did not consider the provisions of section 139 of the N. I. Act which runs as follows:"presumption in favour of holder.-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. " ( 11 ) THE learned Magistrate did not consider that this section raises the presumption that the cheque, which has been dishonoured by the bank, was issued for the discharge, in whole or in part, of any debt or other liability. There was no contrary evidence from defence to rebut the presumption under this section. This itself is a ground also for coming to the conclusion that the learned Magistrate did not appreciate the evidence as well as provisions of law. ( 12 ) THE above discussion makes it clear that the judgment and order of acquittal passed by the learned Magistrate was a product of non-appreciation of evidence and ignorance of law and the said judgment and order resulted into patent illegality amounting to miscarriage of justice. Accordingly, interference by this Court in this appeal against order of acquittal is necessary to remove miscarriage of justice. It is a fit case where the matter should be sent back on remand to the learned Magistrate for fresh trial and fresh decision. The judgment and order of acquittal dated 31. 7. 01 passed by the learned Judicial magistrate, 5th Court, Alipore is accordingly set aside. It is a fit case where the matter should be sent back on remand to the learned Magistrate for fresh trial and fresh decision. The judgment and order of acquittal dated 31. 7. 01 passed by the learned Judicial magistrate, 5th Court, Alipore is accordingly set aside. The criminal case is sent back on remand to the learned Magistrate for fresh trial and fresh decision in accordance with law. Liberty is granted to the learned Magistrate to record fresh evidence, if required for the ends of justice and, the learned Magistrate may exercise jurisdiction under section 311 of the Code to examine any witness or recall any witness already examined for the just decision of the case. The learned Magistrate is directed to complete the trial within four months from the date of communication of this order. ( 13 ) IN the result, the criminal appeal is allowed and the matter is sent back to the learned Magistrate concerned for retrial in the light of the observations made above. ( 14 ) SEND a copy of this order along with Lower Court record to the learned judicial Magistrate, 5th Court, Alipore for information and necessary action. Urgent xerox certified copy be given to the parties, if applied for, expeditionsly. Criminal appeal allowed.