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2009 DIGILAW 207 (CAL)

Subrata Mukherjee v. Sampa Mukherjee

2009-03-06

PARTHA SAKHA DATTA

body2009
Judgment : PARTHA SAKHA DATTA, J. (1) Learned Additional Chief Judicial Magistrate, Serampore by her judgment and order dated 10th of May, 2006 in C.R. Case No. 329 of 2004 convicted the present petitioner under Section 138 of the N.I. Act and sentenced him to suffer simple imprisonment for one month and to pay compensation of Rs.1,60,000/-to the opposite party no. 1 herein under Section 357 (3) Cr.P.C. within 60 days from the date of the order. The judgment and order was challenged in Criminal Appeal No. 21 of 2006 whereby learned Additional Sessions Judge, 2nd Fast Track Court, Serampore by her judgment dated 18th October, 2006 dismissed the appeal and confirmed the judgment and order of the learned Additional Chief Judicial Magistrate. Being aggrieved with the judgment and order of the learned Appellate Court the petitioner-accused has preferred this revision. (2) I have heard the learned Advocate for Opposite Party. The petitioner did not appear despite service. (3) According to the complainant, the complainant gave a sum of Rs.1,60,000/-to the petitionerRs.1 lac by cheque being no. 721662 dated 14th of May, 2003 drawn on H.S.B.C. Bank, and Rs.60,000/- by cash. The petitioner in discharge of his legal liability issued a cheque for Rs.1,60,000/-being no. 401599 dated 14th of May, 2004 drawn on U.T.I. Bank Ltd. The cheque stood dishonoured on the ground of Stopped Payment. Statutory notice followed. No payment was made. Hence the case. (4) Before the learned Magistrate the complainant as P.W. 1 said that the accused took Rs.1,60,000/- from her and also took some money by way of loan from her husband and agreement (Exbt. 3) was drawn up between the parties. The accused agreed to pay the amount through cheque within a year and issued a cheque (Exbt. 2). Another witness P.W. 2 in his evidence spoke of intimation between the complainant and the accused pursuant to which the accused used to take loan from the complainant from time to time. Learned Magistrate found from Exbt. 3 that it was in the form of a declaration by the petitioner where he declared that he received Rs.1 lac through cheque being no. 721662 dated 14th May, 2003 drawn on H.S.B.C. Bank, and Rs.60,000/- in cash for the purpose of investment in the business. In the said agreement there was a reflection that there was issuance of an advance cheque being no. 721662 dated 14th May, 2003 drawn on H.S.B.C. Bank, and Rs.60,000/- in cash for the purpose of investment in the business. In the said agreement there was a reflection that there was issuance of an advance cheque being no. 401599 dated 14th of May, 2004 for the said sum of Rs.1,60,000/-. On behalf of the defence it was contended that the accused made repayment of the amount but the learned trial court found from documents (Exbts. A to D) that those transactions are not related to the transaction in question. Learned Magistrate found that Exbts. A to D relate to certain transactions of Rs.20,000/-, Rs.30,000/-, Rs.40,000/- and Rs.20,000/-and those transactions relate to the petitioner-accused and the husband of the complainant. The transaction in question is for a sum of Rs.1,60,000/- which the opposite party no. 1 gave in favour of the petitioner and Exbt. 2 indicates that that the said transaction was between the petitioner and the opposite party no. 1. The learned Magistrate observed that if according to the petitioner the entire payment of Rs.1,60,000/-had been paid then why he did not take any steps to get back the cheque. In the revisional application certain grounds have been taken and they are dealt with in seriatum. The first ground that the opposite party no. 1 failed to place statement of accounts or statement of repayment of loan does not hold good. It has clearly transpired from evidence that a sum of Rs.1 lac was paid in cheque and Rs.60,000/- in cash. The loan was not repaid. The accused issued a cheque for that amount which was presented to the bank and which stood dishonoured. The question of furnishing of statement of accounts does not arise. The second ground that the cheque was dishonoured not on the ground of insufficiency of fund but on the ground of stop payment . The word stop payment and the words insufficiency of funds do not in the context of a proceeding under Section 138 of the N.I. Act materially differ. The third point that the statutory notice was not properly drafted is not acceptable. The learned Judge in the court below clearly found that the notice was issued on 25th of April, 2005 was accepted by the opposite party. The third point that the statutory notice was not properly drafted is not acceptable. The learned Judge in the court below clearly found that the notice was issued on 25th of April, 2005 was accepted by the opposite party. In his examination under Section 313 Cr.P.C. he was confronted with this question to the effect that he was served with notice but he did not give any answer. Contents of notice were not found to be insufficient by both the courts below. The contention in the application that the documents were not properly admitted in evidence is bereft of substance. The manner of examination of the petitioner under Section 313 Cr.P.C. has been questioned in the revisional application but does not show where was the defect in examination of the petitioner under Section 313 Cr.P.C. The learned court of appeal has dealt with the evidence of the witnesses extensively and I find no illegality or infirmity in the judgment of the learned Appellate Court. It was attempted to argue before the learned court of appeal that the debt in question was a collateral security and not an instrument to discharge the liability, but from evidence of the witnesses it does not transpire that the theory of collateral security could really be established at all. The accused did not produce any evidence of his own to prove his defence of collateral security. The agreement itself clearly shows that it was a loan transaction. (5) Accordingly, the application is dismissed. (6) A copy of the judgment shall be transmitted to the learned Magistrate for information and necessary action.