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2011 DIGILAW 1281 (CAL)

Kartick Chandra Das v. Sanjoy Mukherjee

2011-09-14

KANCHAN CHAKRABORTY

body2011
JUDGMENT Kanchan Chakraborty, J: 1. The captioned revision applications have arisen out of one judgment dated 15.7.2009 passed by the learned Additional Sessions Judge, 3rd Court at Howrah in Criminal Appeal no. 17 of 2008. The parties to that criminal appeal and these revision applications are same. This Court, accordingly, proposes to dispose of both the applications by this common judgement 2. In a Criminal Prosecution under Section 138 of Negotiable Instrument Act, the Complainant Kartick Chandra Das alleged that the accused Sanjoy Mukherjee borrowed Rs. 2,00,000/- from him as he was in dire need of money, on condition to repay the loan by December 2004 and till repayment he would pay interest @ Rs. 8000/- per month. Sanjoy Mukherjee repaid the loan amount of Rs. 2,00,000/- with interest of Rs. 8000/- for the month of October 2004 by drawing and issuing a cheque of Rs. 2,08,000/- being no. 898436 dated 27.12.2004 on P.N.B., Nimtala Posta Branch in the name of Kartick Chandra Das. While handing over the cheque, he requested Kartick not to present the cheque till he makes payment of interest at the agreed rates. But, he stopped paying interest from april 2005. Kartick presented the cheque in the UBI, Sahanpur Branch, Das Nagar on 24.6.2005. The cheque was returned with remark “insufficiency of Fund”. A demand notice was sent on 4.7.2005. Sanjoy failed to pay the cheque amount within stipulated time. The complainant Kartick finding no alternative, lodged the complaint against him under Section 138 of N.I. Act. 2. The learned Magistrate after recording evidence of both the parties, came to a conclusion that Sanjoy committed the offence under Section 138 of N.I. Act and accordingly, convicted him thereto. He was sentenced to undergo S.I. for 5 days and to pay a fine amount of Rs. 4,16,000/-, being twice amount of cheque, as compensation, to the complainant i.e. Kartick Chandra Das. 3. Sanjoy Mukherjee (hereinafter referred to as accused) preferred an appeal challenging the sustainability of the judgement of conviction and sentence. The appeal was registered as criminal appeal no. 17 of 2008 and was disposed of by the learned Additional Sessions Judge, 3rd Court at Howrah. The learned Appellate Court affirmed the order of conviction but modified the order of sentence to the effect that the accused is sentenced to pay a fine of Rs. 1,36,000/-, in default, to suffer S.I. for three months. 17 of 2008 and was disposed of by the learned Additional Sessions Judge, 3rd Court at Howrah. The learned Appellate Court affirmed the order of conviction but modified the order of sentence to the effect that the accused is sentenced to pay a fine of Rs. 1,36,000/-, in default, to suffer S.I. for three months. The accused Sanjoy has come up with the revision application being no. C.R.R. 3441 of 2009 challenging the legality, validity and propriety of the judgement passed by the learned Additional Sessions Judge in Criminal Appeal No. 17 of 2008 on the following grounds : i) that the learned Court failed to appreciate that their existed no legally enforceable debt which the accused/petitioner was supposed to discharge; ii) that the learned Appellate Court failed to consider that the provisions of Section 139 and Section 118 of the N.I. Act come into play after discharging the initial burden of proof by the prosecution; iii) that the learned Appellate Court erred in holding that the cheque in question was issued in discharge of any debt or liability and, as such, the judgement impugned being otherwise bad in law, is liable to be set aside; 4. The complainant Kartick Chandra Das (hereinafter referred to as the complainant) has come up with the application no. C.R.R. no. 3590 of 2009 challenging the legality, validity and propriety of the modified order of sentence passed by the learned Appellate Court in Criminal appeal no. 17 of 2008 whereby the amount of compensation was reduced to 1,36,000/-from 4,16,000/- on the ground that it was passed arbitrarily without considering that Rs. 8000/- per month was paid by the accused towards interest which was having no connection with repayment of principle loan amount and, as such, question of reduction of fine/compensation amount is directed by the learned Trial Court, was entirely erroneous and as liable to be interfered with. 5. Upon the nature of the prayers made by the parties in both the revision applications, the following points are needed to be answered. a) whether or not the order dated 15.7.2009 regarding conviction of Sanjoy Mukherjee, the accused under Section 138 of N.I. Act illegal, incorrect and liable to be set aside; b) whether or not the order of modification of fine/compensation amount arbitrary, incorrect and liable to be interfered with; 6. The point no. a) whether or not the order dated 15.7.2009 regarding conviction of Sanjoy Mukherjee, the accused under Section 138 of N.I. Act illegal, incorrect and liable to be set aside; b) whether or not the order of modification of fine/compensation amount arbitrary, incorrect and liable to be interfered with; 6. The point no. 1 – a) the offence under Section 138 of the N.I. Act is said to have been completed when their exists/existed a illegally enforceable debt or liability on the part of the accused; b) that a cheque is drawn to discharge such a debt/liability; c) that the cheque is presented in a bank for encasement within the valid period; d) that the cheque was dishonoured; e) that a demand notice to pay the cheque amount is sent within 15 days form the date of receipt of the notice and; f) that the drawer fails to pay the cheque amount so demanded within 15 days from the date of receipt of the notice and; g) that the payee or holder of the cheque files a complaint within 15 days therefrom. 7. In the instant case, all the aforenoted ingredients have been fulfilled. The question raised by Mr. Acharja is being sine qua non to constitute an offence under Section 138 of N.I. Act, a cheque has to be drawn in order to discharge a legally enforceable debt/liability in view of explanation to the Section 138 of the Act. The cheque in question amount to Rs. 2,08,000/-, Mr. Acharya contended, was not at all paid in discharge of any legally enforceable debt/liability because admittedly Rs. 8000/- per month was paid by the accused up to November, 2004 from April, 2005, i.e. for eight (8) month. If so, Mr. Acharja contended, the cheque is dispute obviously was not drawn for discharging any debt of Rs. 20,8000/- as claimed. There existed no such debt of Rs. 208000/ at that point of time. On that count, the ld. Trial Court ought to have acquitted the accused instead of convicting him for committing the offence under Section 138 of the N.I. Act. He contended further that the ld. 1st Appellate Court also failed to consider that factual aspect. 8. Mr. There existed no such debt of Rs. 208000/ at that point of time. On that count, the ld. Trial Court ought to have acquitted the accused instead of convicting him for committing the offence under Section 138 of the N.I. Act. He contended further that the ld. 1st Appellate Court also failed to consider that factual aspect. 8. Mr. Acharya reminded this Court this Court that in exercising revisional jurisdiction, High Court can interfere into any order which is, ex facie perverse, illegal and incorrect in as much as violative of fundamental principle of law occasioning mis-carriage of justice. 9. Mr. Acharya contended further that presumption under Section 139 read with Section 118 of the Act arises as an aid to facts established by evidence, i.e., presumption follows prima facie proof of fact not vice versa. Court can not start with presumption and cast the entire burden to rebut the presumption on the drawer of the cheque at the first instance. In support of his contention, Mr. Acharya referred to two decisions of the Hon’nle apex Court- a) Krishna Janardhan Bhat Vs. Datta traya Hegde, reported in AIR 2008 S.C. 1325 ; b) K. Prakashan Vs. P. K. Surenderan reported in (2008) 1 Cr. L.R. (S.C.) 384 . 10. The legal proposition enunciated by the Hon’ble Apex Court in the decisions above is not at all disputed in the case in hand. Mr. Banerjee, learned Counsel for the complainant Kartick, on the other hand, contended that Rs. 8000/- for five (5) months was paid by the accused towards interest at the agreed rate not towards the principle loan amount. The cheque in question of Rs. 208000/- was paid in order to discharge debt of Rs. 2,00,000 towards the principle loan amount together with Rs. 8000/- towards interest @ Rs. 8000/- for the month of December 2004. The specific case of the accused that there was no legally enforceable debt and that a blank cheque was given by him wherein Rs. 20,8000/- was not at all proved in the trial Court. Again, it is contended, when the signature on the cheque is admitted, the same was not rebutted and specific case set up by the accused is not proved, the learned Courts below were correct in taking aid of Section 139 read with Section 118 of the Act. Mr. 20,8000/- was not at all proved in the trial Court. Again, it is contended, when the signature on the cheque is admitted, the same was not rebutted and specific case set up by the accused is not proved, the learned Courts below were correct in taking aid of Section 139 read with Section 118 of the Act. Mr. Banerjee, is support of his contention referred to a decision of the Apex Court in Rargappa Vs. Shri Menor, reported in (2010) 11 SCC 441 . 11. On careful appraisal of the contents of the petition of complaint, evidence recorded and explanation given by the accused in course of his examination under Section 313 Cr.P.C. as well the judgements passed by the Trial Court and the Appellate Court, it appears that although the ld. Trial Court put much importance on presumption under Section 139 read with Section 118 of the N.I. Act, the ld. Appellate Court had dealt with the matter correctly. The fact that signature on the disputed cheque belonging to the accused was not denied far less not proved. The fact that Rs. 8000/- pm. for eight (8) months was paid by the accused towards interest has been averred in the petition of complaint elaborately and that was reproduced in the evidence which could not be contoverted by the accused neither in the Trial Court nor in the Appellate Court. The learned Appellate Court took everything into consideration and came to a conclusion that the cheque in question was drawn in order to discharge a legally enforceable debt. There was no improper application of Section 139 read with Section 118 of the act also. 12. In such a Circumstances, this Court is reluctant to upset the concurrent findings of fact and order of conviction by exercising its revisional jurisdiction by way of further re-appreciation of the evidence which is exclusive domain of Appellate Court. This point obviously goes against the accused/petitioner. 13. Point no. 2-No doubt, the cheque in question was issued in discharge of a legally enforceable debt. Total cheque amount was Rs. 208000 inclusive of interest of Rs. 8000/- for the month of December 2004. The plain arithmetic calculation leaves no room of doubt that the amount in cheque tallies with the total loan amount and interest of one month. Point no. 2-No doubt, the cheque in question was issued in discharge of a legally enforceable debt. Total cheque amount was Rs. 208000 inclusive of interest of Rs. 8000/- for the month of December 2004. The plain arithmetic calculation leaves no room of doubt that the amount in cheque tallies with the total loan amount and interest of one month. This confusion of the learned Appellate Court is evident from the manner in which it dealt with the issue of sentence. When there was no doubt, whatsoever, as to existence of debt and discharging of debt by drawing the cheque in question of Rs. 2,08,000/- by the accused, the learned Appellate Court was entirely wrong to reduce the sentence even less than the cheque amount. To be stated precisely, the learned Appellate Court mis-judged that aspect and acted arbitrarily. The reason assigned by judge in doing so itself is contradictory to its finding as to the first point. Therefore, that part of the impugned judgement relating to sentence and modified sentence are required to be interfered with. 14. Accordingly the revision application being C.R.R. 3441 of 2009 is dismissed. The order of conviction being concurrent finding of facts and not suffering from any infirmity, illegality and impropriety, is not required to be interfered with. 15. The C.R.R. 3590 of 2009 is allowed in part to the extent that the accused Sanjoy Mukherjee is sentenced to pay a fine of Rs. 2,08,000/- to the petitioner/complainant within a period of two months from the date of communication of the order. In default of payment within the period specified, he would suffer S.I. for one year. 16. Both the revision applications are disposed of accordingly.