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2011 DIGILAW 1399 (CAL)

Krishnendu Bandhapadhyay v. Kausik Das

2011-11-03

KANCHAN CHAKRABORTY

body2011
JUDGMENT 1. THE challenge in this revision is to the concurrent findings of the learned Appellate Court whereby the order of conviction under section 138 of the Negotiable Instruments Act and sentence passed by the trial Court was affirmed. The petitioner being the convict has challenged the legality, validity and propriety of the order impugned, mainly, on the following grounds :- (a) that the learned trial Court as well as the learned Appellate Court erred in net considering the factual aspect that there existed no-legally enforceable debt or liability for which the cheque in dispute was allegedly issued by the petitioner; (b) that both the Courts failed to take serious note of the fact that the petitioner allegedly borrowed Rs. 1,10,000/- but the cheque in dispute was amounting to Rs. 1,14,500/- which was illegal in view of the fact that the opposite party was not having any money-lending business license under Bengal Money Lenders Act; (c) that the compensation was awarded without giving the petitioner any opportunity of being heard; and (d) that the learned Courts failed to extend the benefit under section 360 and 361 of the Code of Criminal Procedure to the petitioner. 2. BEFORE the points raised by the petitioner are taken up for discussion, it would be expedient to give short reference to the factual backdrop of the case for better appreciation of the entire matter. The petitioner Krishnendu borrowed Rs/- 1,10.000/- from the opposite party Kausik as he needed cash money very badly. Since they were having very cordial relation, Kausik collected the required sum of money from his father and lend that to the petitioner on 20.3.2006 who undertook to repay Rs. 1,14,500 /- within November, 2006. In order to discharge the debt, the petitioner issued a cheque of Rs. 1,14,500/- in favour of the opposite party on 20.11.2006. The opposite party presented the cheque to his bank for encashment but the bank returned the cheque because of "insufficiency of fund". The opposite party served demand notice on the petitioner on 11.4 2007. Despite receiving the notice on 17.4.2007 the petitioner did not pay the money as demanded. Consequently, the opposite party lodged a complaint against the petitioner for prosecuting him under Section 138 of the N. I. Act. The opposite party served demand notice on the petitioner on 11.4 2007. Despite receiving the notice on 17.4.2007 the petitioner did not pay the money as demanded. Consequently, the opposite party lodged a complaint against the petitioner for prosecuting him under Section 138 of the N. I. Act. In course of the trial, the petitioner had taken a specific plea that the opposite party somehow managed to collect one of his signed blank cheques and written his name and the amount therein. He had also taken a plea he did not take any loan from the opposite party at any point of time. 3. THE learned trial Court, upon appreciation of the oral and documentary evidence adduced by the parties, came to a conclusion that the opposite party established satisfactorily that he lend Rs. 1,10,000/- to the petitioner who, in- turn , agreed to repay the same within the month of November,2006 together with Rs. 4,500/-; that the petitioner in fact issued a cheque of Rs. 1,14,500/- in favour of the opposite party in discharge of said debt which ultimately was dishonoured owing to "in sufficiency of fund"; that the opposite party served a demand notice on the petitioner within the stipulated period of time and the petitioner failed to pay the cheque amount within 15 days there from and that the action was brought by the opposite party within the period prescribed by the act. The learned Court also came to a conclusion that that the petitioner failed miserably to establish the specific pleas taken by him in course of the trial by any convincing evidence whatsoever. Accordingly, the Id. trial Court recorded conviction of the petitioner for committing the offence under section 138 of the N.I. Act and sentenced him to suffer simple imprisonment of 15 days and to pay Rs. 1,65,000/- to the petitioner towards compensation. The order was appealed against by the petitioner. The learned Appellate Court however, found that the findings of the trial Court was correct and affirmed the order after dismissing the appeal. That concurrent findings of fact has been challenged by the petitioner in this revision on the grounds already stated. 4. MR. Sandipan Ganguly, learned Counsel appearing for the petitioner contended that the money allegedly borrowed was Rs. 1,10,000/- but the cheque in dispute was amounting to Rs. That concurrent findings of fact has been challenged by the petitioner in this revision on the grounds already stated. 4. MR. Sandipan Ganguly, learned Counsel appearing for the petitioner contended that the money allegedly borrowed was Rs. 1,10,000/- but the cheque in dispute was amounting to Rs. 1,14,555/-.This suggested clearly that the opposite party claimed interest on the principal which he could not do without having any license under The Bengal Money Lenders Act, 1940 Therefore, MR. Ganguly contended, the entire transaction being illegal, no- legally enforceable debt or liability was existed which the petitioner was supposed to discharge in view of the Explanation to the section 138 of the N. I. Act. In support of his contention , MR. Ganguly referred to a decision of Bombay High Court in Nanda v. Nandakishore, reported in (2010) 2 E.Cr.N. (BOM) 1459. Mr, Ganguly contended further that the opposite party had no financial capacity to pay such a big amount of money to the petitioner. If so, the Courts ought not have believed that he in fact, lend money to the petitioner as alleged. A decision of the Apex Court in Krishna Janardan Bhat v. Dattatraya G. Hegde, reported in (2008)4 SCC 54 in support of his contention was referred to by Mr. Ganguly. 5. THE grounds number (c) and (d) mentioned earlier would be taken up for consideration afterwards. 6. AT the Bar, the following decisions have also been referred to :- (1) Mangilal v. State of M. P., 2004 SCC (Cri) 1085 : 2004 C Cr LR (SC) 188. (2) Dilip S. Dhanukar v. Kotak Mahindra Co. Ltd and Another, (2007)3 S.C.C. (Cri) 209; (3) K.Prakashan v. P. K..Sundararan, (2008)1 SCC (Cri) 200 : (2008)1 C Cr LR (SC) 384. (4) Bishnu Deo Shaw v. State of W.B., 1979 SCC (Cri) 817; (5) K. N. Beena v. Muniyappan and Ann, 2002 C Cr Lr (SC) 59 ; (6) K. Bhaskaran v. Sankaran Vaidhy Balan and Am., 2000 C Cr LR (SC) 94. It is needless to mention that while exercising its revisional jurisdiction Court should not and must not embark upon a re-appreciation of evidence. Ordinarily, High Courts do not interfere into concurrent findings of facts where the appellate Court had re-appreciated evidence and found no infirmity or illegality in the judgment appealed against. It is needless to mention that while exercising its revisional jurisdiction Court should not and must not embark upon a re-appreciation of evidence. Ordinarily, High Courts do not interfere into concurrent findings of facts where the appellate Court had re-appreciated evidence and found no infirmity or illegality in the judgment appealed against. In exercising revisional jurisdiction when invoked by a convict challenging legality, validity and propriety of a concurrent findings, High Courts power is restricted to whether or not any fundamental principle of law has been violated resulting in miscarriage of justice. 7. ON the first blush, this Court intended not to interfere into the concurrent findings by exercising its revisional jurisdiction simply because the order impugned was found not suffering from any illegality and impropriety. But, Mr. Ganguly raised some mixed questions of law and facts. So, this Court thought it obligatory on its part to answer the questions. 8. REFERRING to the decision of Bombay High Court in Nanda v. Nandkishore (supra), Mr. Ganguly contended that there existed no legally enforceable debt or liability which the petitioner was supposed to discharge as the alleged transaction itself was illegal in view of The Bengal Money Lenders Act 1940. In Nanda v. Nandkishore (supra) the complainant claimed himself as a money lender and the transaction had taken place in course of his money lending business. The Hon'ble Judge found that the complaint failed to show any license under the Money lenders Act to establish his money lending business. Therefore, the Court held, in absence of any valid license, it can not be held that the cheque in question was issued in discharge of any legally enforceable liability. The factual aspect of the case in hands is completely different. In this case, the complainant i.e., the opposite party did not at all claimed that he had been running any money lending business and that he lend money to the petitioner in course of his money lending business. In fact, no such question had ever raised from either of the side during the trial. Therefore, the decision of the Bombay High Court is not applicable either on principle or factually in this case. In this context, a decision of Karnataka High Court in V. Satyanarayana v. M/s. Sandeep Enterprises, (2005)1 DCR 203 can well be referred to. In that case the complainant admitted that he has been running money lending business. Therefore, the decision of the Bombay High Court is not applicable either on principle or factually in this case. In this context, a decision of Karnataka High Court in V. Satyanarayana v. M/s. Sandeep Enterprises, (2005)1 DCR 203 can well be referred to. In that case the complainant admitted that he has been running money lending business. But, it was not established that he has lend money to the petitioner/accused in the course of his such business. Again, the questions put to him in cross- examination to that effect were denied. The petitioner failed to substantiate his such specific plea. The Court discarded such a case and came to a finding that the transaction was not done in course of any money lending business and absence of license can not be a ground of acquittal. In the case in hands, the opposite party has never made out any such case nor has admitted at any point of time that he lend money to the petitioner in course of his money lending business. So, this Court finds no force in the contention of Mr. Ganguly. Mr. Ganguly raised another question as to the cabability of the opposite party to lend such a big amount of money and refered to the decision in K. Prakashan (supra). The decision in K. Prakashan is not applicable in this case on the grounds:- (a) that the fact of the case and that of this case is entirely different (b) that the view of the trial Court can not be said to be wrong because the entire pros and cons of the circumstance of the case and evidence on record was appreciated in details (c) that the opposite party charged interest (d) that the opposite party was not found to be not a man of means and in a habit of taking loans from others. To be stated precisely, the view of the Apex Court is based on the factual aspect of the case and evidence on record which the trial Court appreciated in details. It is trite law that each case is to be judged according to its facts .circumstances and evidence on record. In the instant case, the opposite party was not found to be not a man of means and that he was not in a habit of taking advance from others. That fact was. not at all challenged in trial. It is trite law that each case is to be judged according to its facts .circumstances and evidence on record. In the instant case, the opposite party was not found to be not a man of means and that he was not in a habit of taking advance from others. That fact was. not at all challenged in trial. The trial Court as well as the appellate Court appreciated the evidence in details. The suggestions put in course of his cross examination were denied flatly by him. The petitioner adduced no evidence at all to rebut the presumption that the opposite party did not advance money and that he issued the cheque in dispute in discharge of that liability. On the contrary, he made out a specific case of blank cheque which was not also proved. In such premises it is really inexpedient to discard the concurrent findings of the Courts below. 9. IN Krishna Janardhan Bhat v. Dattatraya Hedge (supra), it was held that Section 139 merely raise a presumption in favour of the holder of the cheque that the said cheque has been issued for discharge of any debt or other liability and existence of legally enforceable debt is not a matter of presumption under section 139 of the N. I. Act. It has been observed by the Apex Court that whether the presumption stood rebutted or not must be determined keeping in view the evidence on record and other factual aspects. In other words, the complainant is always saddled with the burden to establish his case and the accused is not required to get himself examined to disproved the case. If the complainant failed to establish his case satisfactorily or if his case is found not acceptable at all, presumption simplisiter will not help him any way. In that case, the accused is not under any obligation to rebut the presumption under the law. In the case in hands, however, it was established as well as not denied that there was close friendship between the parties. It was nobodies case that the complainant had been running any money lending business or that he lend money to the petitioner in course of his such money lending business. In the case in hands, however, it was established as well as not denied that there was close friendship between the parties. It was nobodies case that the complainant had been running any money lending business or that he lend money to the petitioner in course of his such money lending business. The suggestions put to him to the effects that he did not collect money from his father to provide loan to his friend in his need when both the families were having good relation were denied. The petitioner made out a specific case which was not at all proved either by any oral evidence or by any documentary evidence. So, the learned trial Court was justified in taking help of presumption in favour of the complainant under Section 139 of the act and take note of the fact that the petitioner failed to rebut the presumption. Therefore, this Court does not think that there was violation of any fundamental principle of law resulting in gross miscarriage of justice calling for interference by this Court. 10. REFERENCE to another decision of the Apex Court in K. N. Beena v. Muniyappan (supra) was given by Mr. Satpati, learned Councel appearing for the opposite party in the matter of application of the section of Section- 139 of the Act. It was viewed by the Court that under Section 118 of the act, unless the contrary is proved, it is to be presumed that the cheque has been made or drawn for consideration. It was further held that under Section 139 the Court has to presume, unless contrary was proved, that the holder of the cheque received the cheque for discharge, in whole or in part, of a debt or liability. The burden of proving that a cheque had not been issued for a debt or liability is on the accused. In the case in hands, the complainant established his case that he lend Rs. 1,10,000 /- to the petitioner on his request who agreed to repay the specific case which he failed to establish miserably as well as failed to rebut the presumption under section 139 read with Section 118 of the Act. Therefore, the learned Courts made no mistake in taking help of the Section 139 and 118 of the Act in coming to the conclusion that the cheque was drawn by the petitioner for discharging the debt. Therefore, the learned Courts made no mistake in taking help of the Section 139 and 118 of the Act in coming to the conclusion that the cheque was drawn by the petitioner for discharging the debt. Both the Courts disbelieved the case of the petitioner that he had issued blank signed cheques to another man and the complainant some how managed to collect one of such cheques and made a false claim. The contention that a blank signed cheque was handed over by an account holder must inherently arouse dissatisfaction and reservation in the mind of the Court. The laudable commercial morality which the legislature seeks to usher in by introduction of Section 138 of the N. I. Act will be frustrated and stultified if such a defence were meekly swallowed by any Court. This specific defence needs proof i.e., sufficient and satisfactory evidence. In the instance case the petitioner adduced no evidence, oral or documentary, in order to establish his such case. The petitioner also failed creat doubt in the mind of the Court even at the time of cross-examination of the complainant. So, there was no wrong appreciation of evidence resulting in miscarriage of justice. In view of the discussion above this Court does not concede to the contention of Mr. Gangly. 11. AS a result, the concurrent findings of the Courts below as far as finding the petitioner guilty of offence under Section 138 of the N. I. Act is concerned is not required to be upset. 12. AS regards the contention of Mr. Ganguly that opportunity of being heard ought to be given to the petitioner in the matter of awarding compensation, this Court finds that compensation was awarded to the tune of Rs. 1,65.000/- while cheque amount was Rs. 1,14,500/- i.e., Rs. 50,000/- was added to for the reason, however, not mentioned at all by the learned Courts. In K. Bhaskaran v. Sankaran Vaidhyn Baian (supra), referred to by Mr. Satpati, Apex Court was pleased to observe that Magistrate may, in appropriate case, can alleviate the grievance of the complainant by making resort to section 357(3) of the Code. Referring to its earlier decision in Hari Singh v. Sukhbir singh, AIR 1988 SC 2127 the Court observed further that no limit is mentioned in the sub-section and, therefore, a Magistrate can award any sum as compensation. In Diiip S. Dahanukar v. Kotat Mohindra Co. Referring to its earlier decision in Hari Singh v. Sukhbir singh, AIR 1988 SC 2127 the Court observed further that no limit is mentioned in the sub-section and, therefore, a Magistrate can award any sum as compensation. In Diiip S. Dahanukar v. Kotat Mohindra Co. Ltd Another, referred to by Mr. Ganguly, reported in (2007)3 SCC (Cri) 209, the Hon'ble Court viewed that when fine is not imposed, compensation can be directed to be paid under Section 357(3), Cr.P.C. for loss or injury caused to the complainant by reason commission of offence under Section 138. However, Hon'ble Court in Hari Singh (supra) viewed that while fixing the quantum of such compensation Magistrate has to consider what would be the reasonable amount of compensation payable to the complainant. No doubt, in the instance case, the learned trial Court neither considered the reasonableness of the amount of compensation awarded nor the capability of the petitioner to pay such a big amount of compensation. The learned trial Court did not also give the petitioner any opportunity of being heard. In Mangilai v. State of M.P. (supra), the Court in paragraph No. 12 of the judgment was pleased to observe that if the Court intends to award compensation, an opportunity of hearing has to be granted to the accused so that relevant aspects like the need to award compensation, capacity of the accused to pay and several other relevant factors can be taken note of. Following the ratio of the decisions referred to above, this Court thinks that the petitioner should be given an opportunity of being heard only on the point of amount of compensation for the purposes discussed above. The next and last point raised by Mr. Ganguly is related to applicability of the provisions of Sections 360 and 361 of the Code. The offence for which the petitioner has been convicted is of different in nature. It is akin to commercial offence and is to be dealt with in a different way. The purpose is, of course, to make good the loss suffered by the complainant and regulate commercial transactions in a fair manner so that honesty prevails amongst the persons engaged in monitoiy deals. Although the Court is empowered to put a convict in prison, it is not at all required in all the cases. The purpose is, of course, to make good the loss suffered by the complainant and regulate commercial transactions in a fair manner so that honesty prevails amongst the persons engaged in monitoiy deals. Although the Court is empowered to put a convict in prison, it is not at all required in all the cases. Upon consideration of the entire case, nature of the transaction, relation between the parties and amount of the cheque, it appears to this Court that there is no need to put the petitioner into prison. It would be sufficient if he pays the amount to be fixed by the learned trial Court after giving the parties an opportunity of hearing for that purpose only. So, this Court does not find it expedient to pass direction on the Court to extend the benefit of Sections 360 and 361 of the Code to the petitioner as claimed by Mr. Ganguly. In view of the discussion above, the revision application is allowed in part. While affirming the order of conviction, this Court set aside the order of sentence with following directions on the learned trial Court:- that the learned Court should give the parties an opportunity of being heard in the matter of fixing the compensation amount. The order of imprisonment is set aside as it is not required in this particular case. The learned Court should dispose of the case finally without delay, if possible, within two (2) months from the crate of communication of the order. 13. THE revision stands disposed of accordingly. No order as to cost is passed. The L.C.R. be sent to the learned trial Court at once. Parties be given urgent certified xerox copy of the order after observing usual formalities.