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2011 DIGILAW 45 (CAL)

Swapan Roy v. Sima Sarkar

2011-01-13

KANCHAN CHAKRABORTY

body2011
Judgment : The challenge in this revisional application is to the judgment and order passed by the learned Additional Sessions Judge, Hooghly on 15.5.2006 in Criminal Appeal No. 4 of 2004 whereby the judgment of conviction and sentence passed by the learned Chief Judicial Magistrate, Hooghly, on 23.12.2003 in Criminal Case No. 405 of 2000 was affirmed. The factual background of this revisional application is stated in brief below: Smt. Sima Sarkar, wife of Debasish Sarkar provided Swapan Roy (hereinafter referred to as “the petitioner”) with a loan of Rs.2,00,000/- on 26th May, 2000. The petitioner happens to be a close-relation of Sima Sarkar (hereinafter referred to as “the O.P. no. 1). The O.P. no. 1 was having a Bank Account jointly with her husband, Debasish Sarkar. She paid Rs. 2,00,000/- to the petitioner as loan. The petitioner, on his turn had issued a cheque, being No. 408869 dated 26.5.2000 drawn on State Bank of India, Picnic Garden Branch of Rs. 2,00,000/- towards payment of the loan. It was a postdated cheque. The cheque was deposited with the bank of the O.P. no. 1, U.T.I, Ltd., Konnagar Branch, on 2.8.2000. The cheque was dishonoured and returned unpaid on 3.8.2000 by the said bank with an endorsement “insufficient fund”. The O.P. no. 1 sent one demand notice dated 9.8.2000 through her advocate and posted the same on 14.8.2000 in the official as well as in the residential address of the petitioner by Registered Post as well as Under Certificate of Posting. Service of notices were returned with endorsement of the Postal Authorities “refused” on 16.8.2000 and “not claimed” dated 17.8.2000 at both the addresses. Accordingly, the O.P. no. 1 lodged a complaint on 15.9.2000 against the petitioner in the Court of learned Chief Judicial Magistrate, Hooghly, praying for prosecuting him for committing of offence under Section 138 of the Negotiable Instruments Act. After taking cognizance of the offence, the trial commenced. In course of trial, the Chief Judicial Magistrate recorded evidence of as many as five witnesses examined on behalf of the complainant (respondent no. 1 herein) and four witnesses on behalf of the petitioner. Some documents including the cheque in question, copies of notice, postal envelopes containing the notice of complaint as well as endorsement of the postal departments and the bank account statement were admitted into evidence and marked exhibits on behalf of both the parties. 1 herein) and four witnesses on behalf of the petitioner. Some documents including the cheque in question, copies of notice, postal envelopes containing the notice of complaint as well as endorsement of the postal departments and the bank account statement were admitted into evidence and marked exhibits on behalf of both the parties. Upon consideration of the evidence recorded and upon appreciation of the documents admitted into evidence, the learned Chief Judicial Magistrate found that the petitioner committed an offence under Section 138 of the Negotiable Instruments Act. He recorded conviction of the petitioner under Section 138 of the Negotiable Instruments Act and sentenced him to suffer rigorous imprisonment for one year and to pay a fine of Rs.2,10,000/- out of which Rs.2,00,000/- would be paid to the O.P. no. 1 as compensation. The petitioner herein being aggrieved by and dissatisfied with the said judgment of conviction and sentence of the learned Chief Judicial Magistrate, Hooghly, preferred an Appeal in the Court of learned Sessions Judge of Hooghly, which was registered a Criminal Appeal No. 4 of 2004. The Appeal was heard and disposed of by the learned Additional Sessions Judge, Hooghly on 15.5.2006. Upon reconsideration of the evidence, oral and documentary, and appraisal of the judgment passed by the learned Chief Judicial Magistrate, the learned Appellate Court came to a conclusion that there was no reason for it to interfere with the judgment and order passed by the learned Chief Judicial Magistrate, Hooghly. The learned Appellate Court was pleased to dismiss the appeal and affirmed the order challenged before it. The petitioner has taken out this application for revision challenging the legality, validity and propriety of the judgment passed by the learned Appellate Court in Criminal Appeal No. 4 of 2004 mainly on the following grounds: (1) That the learned Courts below failed to appreciate the legal position that unless a cheque is issued in discharge of any debt or liability, a criminal action under Negotiable Instrument Act does not lie; (2) that the learned Courts below failed to take notice of the fact that two demand notices were issued by the O.P. no. 1, which is not prescribed by the law; (3) that the learned Courts below failed to appreciate the evidence in its proper perspective and have come to a wrong conclusion, which is liable to be set aside. Mr. 1, which is not prescribed by the law; (3) that the learned Courts below failed to appreciate the evidence in its proper perspective and have come to a wrong conclusion, which is liable to be set aside. Mr. Suman De, learned advocate appearing for the petitioner, submits that if the petitioner’s complaint is read minutely, it will reveal that in all two demand notices on two different dates were issued on the petitioner whereby the O.P. no. 1 claimed the cheque money of Rs.2,00,000/-. He submits that when there was a valid service of first notice, sending of second demand notice is against the law. Mr. Subrata Roy Karmakar, learned advocate appearing for the O.P. no. 1, submits that only one demand notice was issued but at two addresses. The notice was written on 9.8.2000 and posted on 14.8.2000. Service of notice addressed to the official address of the petitioner was returned with endorsement “refused” on 16.8.2000 while the notice addressed to the residential address of the petitioner was returned with endorsement “not claimed” on 17.8.2000. No two separate demand notices were issued as claimed by the learned counsel for the petitioner. I have carefully gone through the judgment impugned as well as the judgment passed by the learned Trial Court. I have also carefully gone through the copy of the petition of complaint lodged by the O.P. no. 1 in the Court of learned Chief Judicial Magistrate, Hooghly, with rapt attention. Before going into the facts relating to issuing of demand notices, it appears necessary to mention here that no question relating to issuance of notice was raised at any point of time either in the learned Trial Court or in the learned Appellate Court by the petitioner. The defect, if any, relating to issuance of demand notice is raised for the first time at the time of hearing of this revisional application. In the Memorandum of revisional application no such point has been taken by the petitioner. In this connection, I am fortified to refer a decision of this Court reported in AIR 1978 CR.L.J. 220 (Cal). In that case this Court held that point not raised or argued in Trial Court, nor appearing in the Memorandum of Petition, cannot be allowed to be raised for the first time in revision. In this connection, I am fortified to refer a decision of this Court reported in AIR 1978 CR.L.J. 220 (Cal). In that case this Court held that point not raised or argued in Trial Court, nor appearing in the Memorandum of Petition, cannot be allowed to be raised for the first time in revision. This Court also finds it difficult to take notice of the point regarding alleged defect in issuing demand notice as raised by Mr. De, learned advocate for the petitioner. The point regarding validity and legality of issuance of demand notice was not raised in the learned Trial Court, in the learned Appellate Court and not even taken as a ground in this revisional application. Although, the revisional powers of High Court under Section 401 of the Code of Criminal procedure is very wide and discretionary, it is to be fairly exercised according to the exigencies of each case. It is normally to be exercised only in exceptional cases where there is a glaring defect in the procedure or there is a manifest error of the point of law and consequently there has been a flagrant miscarriage of justice. I reiterate that this point has never been raised and not even in this revisional application. However, since it is raised and competence of Court is challenged, I think it wise and proper to go deep in the factual aspect of the issue raised. Admittedly demand notice dated 9.8.2000 was sent by the O.P. no. 1 at two addresses of the petitioner – one at his official address and another at this residential address. A notice was sent to two separate addresses in two different modes – one by registered post and another under certificate of posting. Both the notices were returned un-served with postal endorsement “refused” and “not claimed”, respectfully. One was returned on 16.8.2000 and another was returned on 17.8.2000. This fact has never been challenged. No question was put to any of the prosecution witnesses in this respect at any point of time during their examination and cross-examination. The fact that notice was issued legally and that the petitioner refused to accept the same remained unchallenged. Both the learned Trial Court as well by the learned Appellate Court below had no occasion to discuss that issue while they disposed of the trial and the appeal, respectively. The fact that notice was issued legally and that the petitioner refused to accept the same remained unchallenged. Both the learned Trial Court as well by the learned Appellate Court below had no occasion to discuss that issue while they disposed of the trial and the appeal, respectively. Section 94 of the Negotiable Instruments Act, 1881 provides mode in which demand notice is to made when a cheque is dishonoured. Section 94 of the said Act authorises issuance of notice either personally, orally, in writing by registered post or any other mode at the place of business as well as at the place of residence of the party for whom it is intended. If the notice is duly directed and sent by post and miscarries, such miscarriage does not render the notice invalid. In the case in hand, the notice was sent at both the residential as well as official address by an established mode of service, i.e., by registered post and under certificate of posting. It is not the case that two different notices written on two different dates were sent to the petitioner. This apart, the question obviously comes in whether the petitioner has been prejudiced by such a service of notice. The answer goes in negative. He refused to accept both the notice with specifying any reason at any point of time and participated in the Trial. That being the fact and since the point has been raised for the first time at the time of hearing of the revisional application, I find that the proposition of Mr. De, learned advocate appearing for the petitioner, that the proceeding is liable to be vitiated because of defect of notice, cannot be accepted. It is true that presumption under Section 139 of the Act is rebuttable presumption and it relates to discharge of any debt or liability when a cheque is received by the holder. Burden is, of course, on the person who issued the cheque to rebut the presumption that it was not issued in discharge of any debt or other liability. On perusal of the materials on record it is found that the petitioner has never denied the fact that he is a close-relation of the O.P. no. 1, rather he admitted that he had taken loan from the husband of the O.P. no. 1. On perusal of the materials on record it is found that the petitioner has never denied the fact that he is a close-relation of the O.P. no. 1, rather he admitted that he had taken loan from the husband of the O.P. no. 1. Some blank cheques admitted into evidence and marked Exhibits indicate that he issued those cheques in favour of the O.P. no. 1. Both the learned Trial Court as well as learned Appellate Court came to a conclusion that had he not any financial transaction with the O.P. no. 1, he would not have issued those cheques in the name of the O.P. no. 1. This apart, it is clear from the judgments passed by the learned Trial Court and the learned Appellate Court that the petitioner admitted the signature and date in the cheque in question. I think that the dispute raised as to issuance of cheque in the name of the O.P. no. 1 is set at rest by such admission by the petitioner while he was examined and cross-examined in the Trial Court. The presumption, which was taken by the Trial Court, remained unrebutted. To be stated precisely, the petitioner adduced no evidence, whatsoever, to rebut that presumption and establish any fact to the contrary. I find, there is direct evidence, oral and documentary, to establish that the petitioner issued the cheque in favour of the O.P. no. 1. The petitioner has not taken any ground, whatsoever, in course of trial as well in the Appellate Court that the cheque was not for discharging his liability or debt. That being so, I have no hesitation to accept the view taken by both the learned Trial Court as well as by the learned Appellate Court. The discussion above makes it abundantly clear that the revisional application is liable to be dismissed. Before I part with, it appears pertinent to mention that the Court in exercise revisional jurisdiction ordinarily does not interfere with the concurrent finding of facts unless there is gross violation of established principles of law resulting in miscarriage of justice. In the case in hand, there is concurrent finding of facts by the learned Trial Court as well as by the learned Appellate Court on all the issues raised in this revisional application, excepting the point of notice, and discussed by both the Courts on the basis of evidence adduced by the parties. In the case in hand, there is concurrent finding of facts by the learned Trial Court as well as by the learned Appellate Court on all the issues raised in this revisional application, excepting the point of notice, and discussed by both the Courts on the basis of evidence adduced by the parties. Therefore, there is no reason to upset the decision of the learned Appellate Court, which has been impugned in this revisional application. It fails. The revisional application is disposed of accordingly. Urgent photostat certified copy of this order, if applied for, be given to the learned advocates of the appearing parties upon complacence of necessary formalities.