Research › Search › Judgment

Calcutta High Court · body

2011 DIGILAW 1500 (CAL)

Tarun Kanti Das v. Sanjoy Ray Chowdhury

2011-12-09

KANCHAN CHAKRABORTY

body2011
JUDGMENT: Kanchan Chakraborty, J. 1. THE challenge in this application under Article 227 of the Constitution Of India is to a concurrent findings of the Ld. Additional District and Sessions Judge F.T.Court No:-4 Barasat , 24- Parganas (North) whereby the order of conviction and sentence of the petitioner under section - 138 of Negotiable Instrument Act passed by the Ld. Judicial Magistrate, Court No-1 , Barasat , in C case No:-1129 of 2001 was affirmed. THE petitioner has challenged the validity , legality and propriety of the order ,mainly , on the following grounds :----- (a ) that the Ld. Courts failed to take into consideration that the Opposite party failed to establish that there was no existence of any legally enforceable debt or liability to be discharged by the petitioner; (b) that the Ld. Courts failed to take a proper decision as to the fact that the cheque in dispute was not issued by the petitioner in favour of the opposite party ; (c) that the Ld. Courts failed to consider that the demand notice was not sent within stipulated period of 15 days from the date of receipt of information from the bank ; (d) that compensation was awarded without giving the petitioner any opportunity of being heard. 2. A short reference to the factual backdrop would be expedient to appreciate the matter properly. The petitioner , in discharge of his legal debt / liability, issued one cheque of Rs.75,000/- in the name of the opposite party dated 08.06 2001. The opposite party presented the cheque to his banker for encashment on the next date but , it was returned unpaid on 13.06.2001 with an endorsement -referred to drawer-. The oposite party contacted the petitioner who requested the opposite party to present the cheque again. The opposite party presented the cheque again on 29.03 2001 for encashment but , it was returned unpaid from his bank with an endorsement -insufficient of fund - on 03.07.2001. A demand notice was sent by the opposite party to the petitioner through his lawyer on 18.7 2001 but , the petitioner failed to make payment within 15 days from the date of receipt of the demand notice .Accordingly , the opposite party filed a complaint for prosecuting the petitioner under section 138 of the N.I. Act. Mr. Pratik Bhattacharjyya , Ld. Counsel for the petitioner contended that the Ld. Mr. Pratik Bhattacharjyya , Ld. Counsel for the petitioner contended that the Ld. Courts failed to appreciate the evidence in its proper perspective and came to a wrong finding that the cheque was issued by the petitioner in discharge of any legally enforceable debt / liability. He has taken this court to the deposition of the Complainant, specially his statement in cross-examination and submitted that the complainant admitted the fact that the writings on the cheque , excepting the signature, was not of the petitioner .He further submitted that in the petition of complaint, detail of the alleged loan taken by the petitioner has not been mentioned anywhere but, mentioned only for the first time while the complainant was examined . The Ld. Courts, Mr. Bhattacharjyya contended, were incorrect to believe the statement of the complainant. 3. I find no force in his submission . It appears to me that both the courts had taken the contents of the petition of complaint and oral testimony of the complaint together with the documentary evidence in coming to such a decision which , in my considered opinion , reasonable ,prudent and result of proper appreciation of the facts , circumstance and evidence on record and is not required to be upset. This court is not oblivious that in exercising its revisional jurisdiction, this court is not supposed to further re-appreciate the evidence already appreciated and re-appreciated by the Ld. trial court and the Ld. Appellate court. In exercising its such power when invoked by a convict challenging validity , legality and propriety of a concurrent findings of fact , High court-s power is restricted to as to whether or not any fundamental principle of law has been violated resulting in gross miscarriage of justice . In the case in hands , no such principle of law has been violated. Therefore ,this court is reluctant to interfere into such findings by exercising its revisional jurisdiction . 4. THE next two point are relating to legal points and, of course , are to be answered. It has been contended by Mr. Bhattacharjyya that the information as to return of the cheque in dispute by the bank with endorsement -insufficient of fund - was received by the complainant on 03.7.2001. 4. THE next two point are relating to legal points and, of course , are to be answered. It has been contended by Mr. Bhattacharjyya that the information as to return of the cheque in dispute by the bank with endorsement -insufficient of fund - was received by the complainant on 03.7.2001. In view of Clause (b) of proviso to the section 138 of the act, demand for payment of the cheque amount by giving a notice in writing is to be sent by the payee or the holder of the cheque in due course within 15 days from date of receipt of such information from the bank. The notice, Mr. Bhattacharyya contended , in the instant case was sent on 18.7.2001. Therefore , there was non-compliance of the mandatory provisions of the act which the Ld. Courts failed to consider. I do not find any logic in the proposition of law advanced by Mr. Bhattacharyya. It is needless to mention that while computing a prescribed period of time , it is always to be reckoned from the date expiring the date the incident took place for this purpose. In the instant case , the period of 15 days is to be counted from 04.7.2001 and a simple arithmetic would show that the period of 15 days expired on 18.7.2001. The demand notice in dispute was sent, admittedly , on 18.7.2001. Therefore , the same was sent within the period prescribed and the requirements of the act were properly fulfilled. 5. IT has been contended by Mr. Bhattacharyya that no opportunity of being heard was given to the petitioner before awarding the compensation of Rs. 1,50,000 /-,i.e., double the cheque amount. The fact that the petitioner was not provided with any opportunity of being heard is correct. In Hari Sing Vs. Sukhbir Sing( AIR 1988 SC 2127 the Hon-ble Apex court viewed that while fixing the quantum of compensation , Magistrate has to consider what would be the reasonable amount of compensation. In Mangilal Vs. State of M.P.(2004 SCC [CRI] 1085 , the Hon-ble court was pleased to observed that if court intends to award compensation ,an opportunity of hearing has to be granted to the accused so that relevant factors like need to award compensation , capacity of the accused to pay and several other factors can be taken care of. In Mangilal Vs. State of M.P.(2004 SCC [CRI] 1085 , the Hon-ble court was pleased to observed that if court intends to award compensation ,an opportunity of hearing has to be granted to the accused so that relevant factors like need to award compensation , capacity of the accused to pay and several other factors can be taken care of. Unfortunately, no such opportunity was given to the accused and the courts did not consider the relevant factors while awarding such a big amount of compensation. That ought to have been done. 6. IN the premises above, the revision application is allowed in part. While affirming the order of conviction and setence, the compensation part in the order impugned is set aside. The Ld. Trial court is directed to hear the parties to the case and upon consideration of the relevant factors , fix the quantum of the compensation amount afresh. The revision application is, thus, disposed of with the direction above. No order as to cost is passed. Parties be given urgent photocopies of the order upon completion of usual formalities.