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2008 DIGILAW 223 (CAL)

Biswanath Singhania v. Kumud Ranjan Sinha

2008-02-22

PARTHA SAKHA DATTA

body2008
Judgment :- (1.) THE Ld. ACJM, Bidhannagore in the district of north 24 Parganas in complaint case No. 971/2000 by his judgment and order convicted the present petitioner under Section 138 of the N. I. Act and sentenced him to suffer S. I. for three months and also to pay a compensation of Rs. 50,000/- to the complainant who is O.P. hereinunder Section 357 (3) Criminal Procedure Code. This judgment and order of the ld. Magistrate has been confirmed by the Ld. Additional Session Judge, 7th Court, Baraat in the district of North 24 Parganas in Criminal Appeal no. 1 of 2006 on 13.3.2007. (2.) THIS revisional application under Section 397 and/or 401 read with Section 482 of Criminal Procedure Code is against the appellate judgment and order confirming the judgment and order of the ld. Magistrate. The grounds of revision were that the petitioner had no personal liability in the dishonouring of the cheque, that no notice was served upon the petitioner, that there was misappreciation of evidence by the ld. Magistrate and also by the Ld. Appellate Court, that there was no vicarious liability of the petitioner, that the provision of Section 251 Criminal Procedure Code was not complied with by the Ld. Magistrate while examining the accused under that section, that examination of the petitioner under Section 313 Criminal procedure Code was also not in order and on those counts as also on after counts as stated in the revisional application, the judgment and order of the appellate court and that of the ld. Magistrate should be set aside. (3.) I have heard Mr. Bhattacherjee, Ld. Advocate for the petitioner and Mr. S. Sanyal, Ld. Advocate for the O.P. (4.) MR. Bhattacherjee was harping on the perfunctionary examination of the accused under Section 251 Criminal Procedure Code and according to him that examination of the accused under Section 251 Criminal Procedure Code was not properly done and as a result of which the judgment and order of the ld. trial Court has been seriously vitiated. Some other grounds were also agitated but in course of hearing of the revisional application Mr. trial Court has been seriously vitiated. Some other grounds were also agitated but in course of hearing of the revisional application Mr. Bhattacherjee submitted that in view of advanced age of the petitioner and also in view of the fact that he is suffering from different ailments in support of which some papers have produced, the petitioner may not be committed to prison instead of imprisonment of compensation and this Court may pass appropriate order by enhancing the amount of compensation so that justice can be rendered to both parties. (5.) I have been taken to a decision of kerala High Court in the case of M. Nasar v. Yoosuf Sidhique and Anr. wherein the honble Judge reduced amount of fine. (6.) MR. Sanyal, ld. advocate for the O. P. , on the other hand, submitted that the alleged non examination of the accused under Section 251 Criminal Procedure Code is a matter of procedural technicalities which need not be highlighted and the accused was not prejudiced in any way by such examination. (7.) HAVING heard the ld. advocates for the parties I find that the submission of Mr. Bhattacherjee has some force in it. The Ld. Magistrate convicted the petitioner to imprisonment for a period of three months and awarded compensation to the tune of Rs. 50,000/ -. The amount of the cheque bounced was in the sum of Rs. 35, 200/- and since the petitioner is agreeable to pay the compensation double the amount of the cheque immediately. I find no logic in the proceeding to examine the grounds of revision and as such i dispose of the Criminal Revision in the manner as is proposed by the ld. advocate for the petitioner. I get inspiration from the decision of the Kerala High Court as stated above where similar approach has been made which was more beneficial to the payee of the cheque. Accordingly, I dispose of the revisional application in the following form. (8.) THE judgment and order of conviction of the petitioner passed by ld. ACJM, bidhannagore under Section 138 of N. I. Act is affirmed. The sentence of imprisonment of three months is set aside. The petitioner is directed to pay compensation of Rs. 70,000/- to the complainant under Section 357 (3) Criminal Procedure Code. The petitioner is also sentenced to suffer imprisonment till rising of the Court of ld. ACJM, bidhannagore. ACJM, bidhannagore under Section 138 of N. I. Act is affirmed. The sentence of imprisonment of three months is set aside. The petitioner is directed to pay compensation of Rs. 70,000/- to the complainant under Section 357 (3) Criminal Procedure Code. The petitioner is also sentenced to suffer imprisonment till rising of the Court of ld. ACJM, bidhannagore. The petitioner shall appear before the ld. ACJM, Bidhannagore within fifteen days from this date on receipt of copy of this order and suffer imprisonment as is indicate above and also pay the compensation of Rs. 70,000/-in favour of the complainant/o. P. Immediately the amount of compensation if not paid to the complainant in the Jaws of the Ld. ACJM, then the petitioner shall surrender to be ld stage which to serve out the sentence. Let a copy of this order shall be sent to the ld. ACJM, Bidhannagore immediately. Let urgent certified Xerox copy of this order be made available to the ld. advocates for the parties, if applied for. Revision disposed of.