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2012 DIGILAW 663 (CAL)

Shubra Mitra v. Dipankar Saha

2012-07-20

RAGHUNATH BHATTACHARYA

body2012
Judgment RAGHUNATH BHATTACHARYA, J. 1. BEING aggrieved by and dissatisfied with the judgment and order of acquittal dated 19.01.2009 passed by the learned J.M. Bidhannagar in T.R. No. 535/2007 arising out of C. Case No. 108/2007 appellant preferred the present appeal. 1. Shortly put the petitioner/appellant is that accused Dipankar Saha is the friend of the complainant / appellant Shubra Mitra. Accused is a reputed promoter and engaged in construction business. The petitioner disburse loan of Rs.6,00,000/- (Rupees 3.5 lakhs by A/c. Payee cheque and Rs. 2.5 lakhs in cash) on 24th November, 2006 and agreed to refund the same within 31.12.2006. 2. AN agreement to that effect was executed between the complainant and the accused person on 24.01.2006. Accused person failed to pay the aforesaid loan to the complainant within stipulated period finally accused Dipankar Saha, the opposite party issued an A/c. payee cheque of Rs.3,50,000/- DRAWN on U.B.I. Baisakhi Branch, Salt Lake City on 27.01.2007 in discharge of his liability. The complainant presented the cheque in the month of May, 2007. On 18.05.2007 the said cheque was returned to the complainant by the banker with an endorsement that payment could not be made for insufficient fund. Thereafter complainant issued a demand notice calling upon the accused to pay the amount within 15 days accused receipt the notice that in spite of receiving the same accused did not pay any amount. Hence the prosecution case. Defence case as it appears from the trend of the cross-examination of the prosecution witness is that of absolute innocence and it was the specific defence of the accused Dipankar Saha that cheque in question was given to the complainant not for repayment of the loan but as a security for the said amount. 3. After examining the complainant a S.A. summon was issued upon the accused person. Accused was examined under Section 251 Cr. P.C. to which he pleaded not guilty and claimed to be tried. Now only point for consideration is whether the cheque in question was given to the appellant/complainant as a security or whether the judgment passed by the learned Court below is likely to be confirmed or not. 4. IN order to bring home the charge leveled against the accused person under Section 138 N.I. Act. Now only point for consideration is whether the cheque in question was given to the appellant/complainant as a security or whether the judgment passed by the learned Court below is likely to be confirmed or not. 4. IN order to bring home the charge leveled against the accused person under Section 138 N.I. Act. complainant Smt. Shubra Mitra examined herself as P.W. 1, Sri Bimalendu Bikash Pariyal, Manager of U.B.I., Baisakhi Branch, Salt lake City are examined as P.W. 2. In addition to this several documents were examined in order to bring home the charge leveled against the accused person. 5. LEARNED Lawyer for the complainant/appellant filed an application along with the appeal under Section 391 of Cr. PC. of 1973 and it was stated in the said petition that learned Magistrate, Bidhannagar on receipt of the petition of complaint to cognizance of the accused examined the complainant under Section 200 Cr. P.C. 1973 and issued process against the accused person under Section 138 of the N.I. Act. On 19.01.2009 learned Magistrate, Bidhannagar delivery the judgment holding that the accused person was not guilty to the charge framed against him. The main ground for acquittal is this that the petitioner failed to mark exhibit, written complaint, acknowledge copy of the demand notice during the course of the trial. According to the petitioner learned Lawyer who conducted the case in the Trial Court has inadvertently committed mistake to mark said documents as exhibits during the course of the trial and according to the complainant/appellant the same was not intentional. It was the specific plea of the petitioner that those documentary evidence was the matter of record because the learned Magistrate was pleased to take cognizance of the offence under Section 138 of the Act and issue process. It was the averment of the petition that appellate Court may take additional evidence when appellate court finds that certain evidence is necessary under Section 391 of Cr. P.C. It is the specific plea of the petitioner that additional evidence under Section 391 Cr. P.C. is necessary because there is a likelihood of failure of justice without such evidence. Therefore, learned Lawyer for the petitioner prays for taking necessary action under Section 391 Cr. P.C. which was strongly opposed by the learned Lawyer of the opposite party. 6. P.C. It is the specific plea of the petitioner that additional evidence under Section 391 Cr. P.C. is necessary because there is a likelihood of failure of justice without such evidence. Therefore, learned Lawyer for the petitioner prays for taking necessary action under Section 391 Cr. P.C. which was strongly opposed by the learned Lawyer of the opposite party. 6. FROM the side of the appellant/complainant two witnesses namely complainant herself and the Manager of U.B.I. Baisakhi Branch was examined whereas from the side of the opposite party one Samar Roy who was an employee of the accused / opposite party was examined as D.W. 1. According to the complainant he proved the original copy of the agreement marked Exhibit 1 which was executed in between herself and opposite party Dipankar Saha. She was also proved the return memo when she represented the cheque at the bank which was dishonoured as Exhibit 2. She further stated that she fully acquainted with the contents of the petition of complaint. During the course of the cross - examination P.W. 1 admitted that she was a housewife. She gave a loan to the accused person and constantly pressurized the accused i.e. the opposite party to repay the amount. She waited for a long time thereafter she received a cheque. He gave the same as a security for the amount given to her to the opposite party. P.W. 2 who happens to be the Manager of U.B.I., Baisakhi Branch contended that cheque was issued on 2701.2007 and same was issued in favour of Shubra Mitra. Cheque was of Rs. 3,50,000/- which was drawn on his bank. The instant cheque was presented to the bank for encashment but same was returned for the reason of insufficient fund in the account of the drawer of the cheque. At the relevant date that when the cheque was produced then the opposite party has only Rs.1069.11 in his account. To contradict the statement given by the prosecution witnesses one Samar Roy an aged person and an ex-employee of the opposite party has deposed in this case. According to him he knew both sides. He knew that there was an agreement between the appellant and the opposite party. It is contended that the opposite party issued a cheque in favour of the appellant Shubra Mitra and told her that she should not deposit the said cheque without his permission. According to him he knew both sides. He knew that there was an agreement between the appellant and the opposite party. It is contended that the opposite party issued a cheque in favour of the appellant Shubra Mitra and told her that she should not deposit the said cheque without his permission. According to him the agreement was executed on 24.11.2006 and opposite party issued the said cheque in favour of Shubra Mitra and value of the cheque was Rs.3,50,000/-. These are in a nutshell evidence adduced on behalf of the both sides. 7. NOW learned Lawyer filed an application under Section 391 Cr. P.C. praying for giving additional evidence stating inter alia that learned Lawyer who conducted the case on behalf of the petitioner before the Trial Court due to the ignorance omitted to mark the written complaint as exhibit and according to him same was not intentional. According to the petitioner Mr. Ghosh those documentary evidence were matter of record and all those documents are extremely necessary in order to bring home the charge leveled against the opposite party. It was submitted by him that as learned Trial Court took cognizance of the offence under Section 138 of the Act and issue process after perusal of these documents. It can be safely presumed that learned Lawyer took cognizance of the recital of these documents. According to him all those documents as referred to above are extremely necessary in order to arrive a proper decision of the instant case as a result he prayed for return the same to the Court below with necessary directions. 8. THE intention of the provision is to empower the Court or to more correctly to the Appellate Court to see that justice is done between the prosecutor and prosecuted and if the Appellate Court finds that the certain evidence is necessary for a correct finding it will take appropriate action. The Appellate Court can act under these sections when some documents admitted have not been legally proved or examination of the accused under Section 313 has not been unsatisfactory or without for obvious reason neither party is willing to call witnesses who knows the important fact or when prosecution witness have been cross-examined at the trial. The court gives power to the Appellate Court to take additional evidence which for reasons to be recorded it considered to be necessary. The court gives power to the Appellate Court to take additional evidence which for reasons to be recorded it considered to be necessary. Additional evidence must be necessary not because it will be impossible to pronounce the judgment but because there should be failure of justice without it. The Appellate Court cannot decide if additional evidence should be admitted unless it has heard the appeal on merit. 9. ACCORDING to P.W. 1 Smt. Shubra Mitra, on 27.01.2007 accused Dipankar Saha issued a cheque and same was placed for encashment and then dishonoured. During the course of the cross-examination on 03.03.2008 P.W. 1 categorically admitted "I waited for long time after receiving the cheque. It was kept with me as a security for the amount". On behalf of the accused one Samar Roy was examined as D.W. 1, as per his ocular version, issued a cheque in favour of Shubra Mitra and he was also stated that the cheque was issued by the accused as security of the loan given to the accused. These are in a nutshell evidence adduced on behalf of the both sides. 10. ADMITTEDLY from the above evidence and on careful scrutiny of the record it appears to me that cheque was issued as security deposit against the loan and on this score the learned Counsel for the defence submitted a judgment reported in (2008) 2 C Cr LR (SC) 197. According to the said judgment liability of the appellant under Section 138 of the Act are attracted only on account of dishonoured of cheque issued in discharge of liability or debt but not on account of issuance of the security cheque. So far the relevant portion of the N.I. Act is concerned. Cheque was issued in discharge of debt and it was more or less accepted that said cheque could not be said to have been issued in discharge of the debt. 11. So far the relevant portion of the N.I. Act is concerned. Cheque was issued in discharge of debt and it was more or less accepted that said cheque could not be said to have been issued in discharge of the debt. 11. LEARNED Lawyer for the appellant referred another decision reported in (2006) 3 SCC (Cri) 30 it was decided (I have only mentioned the head notes) Negotiable Instruments Act Section 138 and 139 Cheque issued to the complainant share broker in share dealing presumption on the N.I. Act that the cheque was issued in discharge of the debt rebuttal of defence of accused that he issued a cheque in question by way of security and not towards any amount due to the complainant in share transaction. Said defence was accepted. 12. IN the instant case P.W. 1 admitted in her deposition that cheque was given by the accused to her as a security which were duly corroborated by the ocular version of witness adduced from the side of the defence. Moreover, It was argued by the learned Lawyer appearing for the appellant that the written complaint was not marked Exhibit. It is needless to mention that written complaint is the genesis of the case of the appellant has not been marked as exhibit in the instant case. It is an admitted fact that written complaint was the basic foundation of trial and non exhibiting the same will vitiate the entire proceeding. But I have gone through the entire case record carefully and found the learned Lawyer for the complainant has made several exhibits without marking the written complaint. Moreover, ignorance of law cannot be any ground for taking appropriate step for disposal of C.R.A.N. No. 364 of 2011. That learned Lawyer for the appellant vehemently argued for sending back to the instant case to the Court below with a direction to make certain document as exhibit and returned the same by this Court for fresh trial and argument. I think that even in absence of that in view of the aforesaid discussion the entire case failed so it is useless to sending back the case to the Court below. Thus I do not found any merit in the C.R.A.N. No. 364 of 2011. 13. I think that even in absence of that in view of the aforesaid discussion the entire case failed so it is useless to sending back the case to the Court below. Thus I do not found any merit in the C.R.A.N. No. 364 of 2011. 13. IN this context learned Lawyer for the defence referred some decisions reported in 2001 SCC (Cri) 812 and 2004 SCC (Cri) 183 and after going through those judgments I do not find any merit of their application in the instant case as the facts and circumstances are quite different. 14. IN view of aforesaid discussion when both the complainant and the witnesses adduced from the defence admitted that the cheque issued as a security and not for the repayment of loan. So, in my humble opinion the relevant provision of N.I. Act was not attracted. 15. THUS I do not find any merit to interfere with the judgment passed by the Trial Court. Hence the appeal stands dismissed. 16. LET copy of this judgment along with Lower Court Record be sent down to the Court below at once. 17. URGENT Photostat certified copy, if applied for, be handed over to the parties as early as possible.