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2005 DIGILAW 764 (CAL)

ASIM KUMAR SAHA v. NEPAL MAHATO

2005-12-16

P.N.SINHA

body2005
P. N. Sinha ( 1 ) THIS revisional application is directed against judgment and order dated 20. 9. 02 passed by the learned Sessions Judge, Purulia in Criminal Appeal no. 8/02 thereby affirming the judgment and order of conviction dated 30. 4. 02 passed by the learned Chief Judicial Magistrate (in short CJM), Purulia in complaint Case No. 36/2000 under section 138 of the Negotiable Instruments act (in short N. I. Act) thereby sentencing the accused petitioner to pay a fine of Rs. 1,50,000/- i. d. to suffer simple imprisonment for 6 months with further direction that if the amount of fine be paid, Rs. 1,49,400/- out of the fine amount shall be paid to complainant O. P. No. 1 Nepal Mahato as compensation. Being aggrieved by, and dissatisfied with, the order of affirmation of sentence by the learned Sessions Judge the accused petitioner has preferred the instant revisional application. ( 2 ) MR. Himangshu De, learned Advocate appearing for the accused petitioner submitted that handwriting over the cheque in question is disputed. Name of nepal Mahato, the complainant is appearing in the front page and the back page of the cheque and these two writings of the name Nepal Mahato is almost identical and is not tallying with the signature of the accused where he has signed his name allegedly issuing the cheque on 13. 11. 99. Learned Trial Court did not take any step for handwriting expert for verification of the handwriting or signatures and did not compare the signature of the complainant and accused. The accused petitioner did not issue the cheque at all on 13. 11. 99 and he was falsely implicated in this case. ( 3 ) MR. DE contended that in cross-examination the complainant Nepal Mahato as P. W. 1 admitted that first talk of business deal was taken in his house in the month of January-February, 2000. If the talk of business between accused and complainant was held in January-February, 2000, the question of issuing cheque by the accused on 13. 11. 99 does not arise at all. The evidence thus reveals that there was no business transaction or loan transaction between accused and complainant in the year 1999, and so there was no debt or liability in November, 1999. The O. P. complainant did not produce any paper of income tax to prove that he was running business even prior to 2000. The evidence thus reveals that there was no business transaction or loan transaction between accused and complainant in the year 1999, and so there was no debt or liability in November, 1999. The O. P. complainant did not produce any paper of income tax to prove that he was running business even prior to 2000. The accused petitioner had no capacity to issue cheque of such a huge amount of Rs. 1,49,400/ -. No paper of income tax was produced in Court by the complainant and naturally adverse presumption should be drawn against the complainant. It would establish that the complainant had no such business transaction nor any type of transaction with the accused for which the accused could have issued the cheque of such a huge amount in favour of complainant. ( 4 ) MR. De further submitted that the learned Magistrate did not compare the handwriting of the complainant or the accused which power he should have exercised under section 73 of the Evidence Act. The learned Magistrate could not have imposed fine of Rs. 1,50,000/- on the accused and he had no power to impose fine exceeding Rs. 5000/ -. The learned Sessions Judge also did not consider that aspect that a Magistrate cannot impose a fine of Rs. 1,50,000/ -. Accordingly, there was no fair trial and there were defects and lacunas in the trial for which the case should be sent back on remand to the learned Magistrate for fresh trial after setting aside order of conviction and sentence. In support of his contention Mr. De cited the decision reported in 2002 Cr LR (SC) 1034. ( 5 ) MR. Sudipto Moitra, learned Advocate for the O. P. complainat submitted that presumption under section 139 of the N. I. Act was in favour of the complainant. He is the holder of the cheque and the cheque was issued by the accused in his name. The cheque was presented for encashment on 28. 4. 2000 when it was bounced. The complainant sent demand notice through his lawyer on 2. 5. 2000 and the accused received the notice on 4. 5. 2000. In spite of receipt of the notice, the accused petitioner did not make payment of the dishonoured cheque within 15 days. Thereafter, the complainant lodged the complaint and the trial that followed ended in conviction of the accused petitioner. 5. 2000 and the accused received the notice on 4. 5. 2000. In spite of receipt of the notice, the accused petitioner did not make payment of the dishonoured cheque within 15 days. Thereafter, the complainant lodged the complaint and the trial that followed ended in conviction of the accused petitioner. Both the court of learned Magistrate and the learned Sessions Judge upheld the factual aspects and this Court would not interfere into the factual aspects. ( 6 ) MR. Moitra further submitted that the question now raised by the accused relating to dispute in signature cannot be considered by this Court which has been raised for the first time before the High Court. All the ingredients of fulfilling the requirements of the offence under section 138 of the NI Act was established against the petitioner and the learned Courts below rightly held the petitioner guilty and sentenced him to pay the fine. There was no evidence that there was no business transaction between the accused and complainant. The evidence is to be read on the whole and, if the evidence is construed properly, it would be clear that there was business transaction between accused and complainant and the complainant paid money to the accused when he was in need for money for the purpose of construction of his contractory business as he obtained some work order from Forest Department. The revisional application having no merit should be dismissed. ( 7 ) I have duly considered the submissions of the learned Advocates of both parties and perused the materials on record including the lower Court record and the evidence that was introduced in Court. The complainant's case was that the accused petitioner obtained some work order for construction of Forest rest House, Deer Park at Purulia and he was in need of money for completing the said work and he approached the complainant for some financial accommodation. The complainant supplied him some goods and also paid him a sum of Rs. 2,00,000/- in presence of witnesses. The accused petitioner repaid some amount towards cost of materials but failed to repay balance price of goods and cash money. At the request of the complainant to pay the price for goods supplied and balance cash, the accused petitioner issued a cheque bearing no. 716749 dated 13. 11. 99 drawn on State Bank of India, Purulia Branch for rs. The accused petitioner repaid some amount towards cost of materials but failed to repay balance price of goods and cash money. At the request of the complainant to pay the price for goods supplied and balance cash, the accused petitioner issued a cheque bearing no. 716749 dated 13. 11. 99 drawn on State Bank of India, Purulia Branch for rs. 1,49,400/- in the discharge of his debts and liabilities. The cheque when presented to the bank by the complainant on 28. 4. 2000 was dishonoured with remark 'insufficient fund'. Thereafter, the complainant sent demand notice through his lawyer on 2. 5. 2000 and the accused received the notice on 4. 5. 2000 but did not make payment of the dishonoured cheque within 15 days from the date of receipt of demand notice. The complainant then lodged the complaint and on the basis of it process was issued against the petitioner. The trial that followed ended in conviction of the accused petitioner under section 138 of the n. I. Act and he was sentenced to pay a fine of Rs. 1,50,000/- i. d. to suffer simple imprisonment for 6 months. The accused petitioner preferred an appeal challenging the judgment and order of conviction passed by the learned CJM and the learned Sessions Judge in Criminal Appeal No. 8/02 dismissed the said appeal by his judgment and order dated 20. 9. 02. ( 8 ) AFTER going through the materials on record and evidence I find that all the elements and ingredients which are required for fulfilling a case under section 138 of the N. I. Act was well and convincingly proved in the trial. The disputed cheque was Exhibit 1 and the bankers note showing dishonour of the cheque with endorsement "insufficient balance" was Exhibit 2. Exhibit 3 is the demand notice and Exhibit 4 is the postal receipt showing sending of the notice by registered post and Exhibit 5 is the acknowledgement card bearing signature of accused petitioner dated 4. 5. 2000. The accused after receiving the notice sent a reply through his lawyer to the learned Advocate for complainant on 12. 5. 2000. The evidence of P. W. 1 Nepal Mahato, the complainant, P. W. 2 mahadeb Pal and P. W. 3, Satyanarayan Bauri, an officer of State Bank of India, purulia together with the documents marked as Exhibits 1 to 5 clearly established and proved the complainant's case. 5. 2000. The evidence of P. W. 1 Nepal Mahato, the complainant, P. W. 2 mahadeb Pal and P. W. 3, Satyanarayan Bauri, an officer of State Bank of India, purulia together with the documents marked as Exhibits 1 to 5 clearly established and proved the complainant's case. After going through the handwriting of the cheque on Exhibit 1, I do not find that there was any dispute in handwriting of the cheque. The front page of the cheque on close scrutiny clearly indicates that the name Nepal Mahato was written with same ink, pen and by same hand where the accused put his signature issuing the cheque. The name of Nepal Mahato appearing on the reverse side of the cheque does not appear to be same handwriting like the one which is on the front page of the cheque. Writing of the word 'n' and some other loops in the name of Nepal mahato are different in the front page of the cheque with the name of Nepal mahato appearing in the reverse of the cheque. Therefore, the submission of mr. De that writing is disputed and same person wrote the entire matter particularly name of Nepal Mahato both at front and reverse page of cheque is not acceptable. ( 9 ) THE single line in cross-examination of P. W. 1 that first talk of business deal was taken in January-February, 2000 cannot be regarded as sufficient to disbelieve the complainant's case and to throw the complainant's case out of court. Complainant's consistent case is that the accused petitioner obtained work order for construction of Forest Rest House, Deer Park at Purulia and he approached the complainant for financial accommodation to complete the works. The complainant helped him not only by supplying cash but also by supplying some goods and materials. The evidence has to be read on the whole and one line in cross-examination cannot prove that before 2000 there was no understanding between complainant and accused. Evidence of P. W. 1 was well-corroborated by P. W. 2 another witness whose evidence also reveals that the accused handed over the cheque to complainant and he stated that accused gave the cheque for some amount of money which the accused had taken as loan from complainant and also for purchasing building materials from complainant. Evidence of P. W. 1 was well-corroborated by P. W. 2 another witness whose evidence also reveals that the accused handed over the cheque to complainant and he stated that accused gave the cheque for some amount of money which the accused had taken as loan from complainant and also for purchasing building materials from complainant. P. W. 3 in an officer of bank and his evidence being corroborative in nature strengthens complainant's case. The combined effect of evidence of p. W. 1, P. W. 2 and P. W. 3 clearly establishes the fact of transaction between accused and complainant prior to 2000. When the Courts of learned Magistrate and the learned Sessions Judge arrived at concurrent finding of fact which this court finds as correct and proper there is no ground for interference by this court on factual matters. ( 10 ) THE complainant is the holder of the cheque and the cheque hears the signature of accused and it was presented by complainant for encashment in bank on 28. 4. 2000 within 6 months from the date of issue of the cheque and it was dishonoured on the same day. Thereafter, the complainant issued demand notice and the accused received the same on 4. 5. 2000 but in spite of that did not make payment of the dishonoured cheque. The accused had the opportunity to rebut the presumption which is in favour of the complainant in view of provisions of section 139 of the N. I. Act by adducing cogent and convincing evidence. The accused petitioner did not lead any evidence to rebut the presumption. This Court, therefore, finds that both the learned Courts below correctly arrived at the decision that offence under section 138 was complete and proved and the accused petitioner was guilty for the offence under section 138 of the N. I. Act. The learned Magistrate made no mistake by convicting the accused and the learned Sessions Judge in appeal after considering the evidence and materials on record rightly affirmed the conviction and sentence and dismissed the appeal. ( 11 ) PRODUCTION of papers of income tax is not a ground to disbelieve complainant's case and to throw his case out of the Court. It is the income tax authority who may take action against the complainant, if the complainant did not furnish return properly before the income tax authorities showing correct income and expenditure. ( 11 ) PRODUCTION of papers of income tax is not a ground to disbelieve complainant's case and to throw his case out of the Court. It is the income tax authority who may take action against the complainant, if the complainant did not furnish return properly before the income tax authorities showing correct income and expenditure. Merely for the failure to produce income tax papers by the complainant in the trial, the right of complainant to initiate a proceeding under section 138 of the N. I. Act for the dishonoured cheque cannot be curtailed. ( 12 ) THE decision cited by Mr. De in Vinod Tanna vs. Zaher Siddiqui reported in 2002 C Cr. LR (SC) 1034, is not at all applicable in the present proceeding. The said reported decision of the Hon'ble Supreme Court reveals that in the said matter the cheque was refused as signature of the drawer was incomplete. The facts of the reported case is clearly distinguishable from the present facts and circumstances. In the present case signature of the drawer i. e. accused petitioner was complete and the cheque was dishonoured only for "insufficient balance". If a person issues a cheque having no sufficient fund in the bank he is liable for penalty for the offence under section 138 of the N. I. Act. ( 13 ) I am not convinced with the submission of Mr. De that the learned magistrate could not have imposed penalty or fine of Rs, 1,50,000/ -. It is true that in view of provisions of section 29 of the Cr. PC, a Magistrate of the first class may impose a sentence of fine not exceeding 5000/- rupees. Considering the facts and circumstances of the case, I modify the sentence and direct that out of fine amount of Rs. 1,50,000/-, Rs. Rs. 600/- shall be amount of fine imposed on petitioner and the balance Rs. 1,49,400/- shall be treated as compensation. If the complainant does not make payment of Rs. 600/- as fine he will suffer simple imprisonment for 15 days. After payment of entire amount, the amount of compensation shall be paid to the complainant and the amount of fine shall be credited to the State. The conviction and sentence passed by the learned cjm, Purulia and affirmed by learned Sessions Judge, Purulia is modified to that extent and the manner as indicated above. After payment of entire amount, the amount of compensation shall be paid to the complainant and the amount of fine shall be credited to the State. The conviction and sentence passed by the learned cjm, Purulia and affirmed by learned Sessions Judge, Purulia is modified to that extent and the manner as indicated above. The accused petitioner is directed to pay the aforesaid sum of Rs. 1,50,000/- as indicated above in the Court of learned CJM, Purulia within 60 days from the date of this order. ( 14 ) IN view of the discussion made above this Court finds no ground at all for remanding the case for retrial. The learned Sessions Judge rightly affirmed the conviction and sentence imposed on the petitioner by the learned CJM, purulia. The conviction is affirmed but the sentence is modified in view of the indication made above. The revisional application in view of the discussion made in the previous paragraphs having no merit fails and is dismissed. ( 15 ) ALL interim orders passed earlier stand vacated. ( 16 ) CRIMINAL section is directed to send down the lower Court records along with the copy of this order to the learned Sessions Judge, Purulia and to the learned Chief Judicial Magistrate, Purulia for information and necessary action. Later: urgent xerox certified copy be given to the parties, if applied for, expeditiously. P. N. Sinha, J. : revisional application dismissed with modification in sentence.