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2013 DIGILAW 665 (CAL)

Goutam Ghosh v. Rajesh Bose

2013-09-11

ASIM KUMAR MONDAL

body2013
JUDGMENT Asim Kumar Mondal, J. This is an application under Section 482 read with Section 401 under Code of Civil Procedure. The petitioner has preferred the present application challenging the judgment and order date January 29, 2011 passed by the learned Additional District and Sessions Judge, Paschim Medinipur in Criminal Appeal No. 22 of 2010 dismissing thereby and affirming the judgment and order dated April 29, 2010 passed by the learned Judicial Magistrate, 2nd Court, Paschim Medinipur in C.R. Case No. 80 of 2008 under Section 138 of the Negotiable Instrument Act, 1881. The opposite party No. 1 filed a complaint case before the learned Chief Judicial Magistrate, Paschim Medinipur against the petitioner which was registered as C.R. Case No. 80 of 2008 under Section 138 of the Negotiable Instrument Act. The said case was subsequently transferred to learned Judicial Magistrate, 2nd Court, Paschim Medinipur for trial. Learned Judicial Magistrate, 2nd Court, Paschim Medinipur was pleased to pass the judgment and order finding the petitioner as accused ordering to sentence to suffer simple imprisonment of thirty days and is further directed to pay compensation of Rs. 39,000/-(Rupees thirty nine thousand only) under Section 357(3) of the Code of Criminal Procedure. Petitioner preferred an appeal challenging the said judgment and order before learned Sessions Judge, Paschim Medinipur. The said appeal was heard by learned Additional District and Sessions Judge, Paschim Medinipur. Learned Additional District Judge dismissed the appeal on contest affirming the order passed by the learned Magistrate, 2nd Court, Paschim Medinipur. Being aggrieved by and dissatisfied with the order of conviction passed by learned Judicial Magistrate, 2nd Court, Paschim Medinipur and the order or judgment by the learned Additional District Judge affirming the said order the petitioner has preferred the present revisional application on the grounds that the judgment and order passed by the learned Additional District and Sessions Judge affirming the judgment and order of learned Judicial Magistrate, 2nd Court, Paschim Medinipur is based upon non-application of mind and misinterpretation of statute and the same is liable to be set aside. Further that the learned Lower Appellate Court has failed to appreciate the evidences adduced by the complainant as well as the case as made out by the petitioner. That the case as preferred in the present revisional application is that the petitioner issued a cheque bearing No. 475304 for Rs. Further that the learned Lower Appellate Court has failed to appreciate the evidences adduced by the complainant as well as the case as made out by the petitioner. That the case as preferred in the present revisional application is that the petitioner issued a cheque bearing No. 475304 for Rs. 26,000/- (Rupees twenty six thousands only) drawn on United Bank of India, Medinipur Branch at School Bazar on 07.01.2008 which got bounced on account of insufficiency of fund. A statutory notice demanding the payment followed on 14.01.2008 which was allegedly avoided by the petitioner in spite of getting intimation of the notice given by the postal peon on 15.01.2008. Payment had not been paid. As such the complaint was lodged. The case was transferred to learned Judicial Magistrate, 2nd Court at Paschim Medinipur. Learned Magistrate held the trial and at the end of trial recorded conviction against the petitioner under Section 138 of N.I. Act. None appears for the State. Mr. Moloy Bhattacharyya with Mr. Pradip Paul appears for the opposite party No. 1. Mr. Bhattacharyya submits that the ingredients to bring home the charge under Section 138 of N.I. Act in the present case has been fulfilled. He further submitted that both the learned Trial Court as well as learned Lower Appellate Court has concurrently hold that the cheque in question was issued by the petitioner / accused person in favour of the opposite party No. 1 in discharge of his liability to repay the accommodation of loan taken by him from opposite party No. 1. The said cheque was presented within the statutory period and that was bounced due to insufficiency fund. A statutory notice demanding the money was sent to the petitioner by registered post with A/D which was returned by the postal authority with an endorsement “not claimed”. After the expiry of statutory period a complaint was lodged evidences has been adduced and documents in original has been marked exhibited. The defence taken by the petitioner during trial as well as in course of hearing in the appeal was not established or proved by any rebuttal evidences. On careful perusal of the judgment and order passed by the learned Trial Court as well as by the learned Appellate Court I do not find any irregularity or illegality in holding that the petitioner is guilty of offence under Section 138 of N.I. Act. On careful perusal of the judgment and order passed by the learned Trial Court as well as by the learned Appellate Court I do not find any irregularity or illegality in holding that the petitioner is guilty of offence under Section 138 of N.I. Act. Both the Courts concurrently hold conviction after considering the evidentiary values of the evidences of P.W. that is the complainant and the documents exhibited thereof. Learned Trial Court as well as Learned Lower Appellate Court have meet the objections raised by the petitioner in present revisional application properly as to the legality and validity of the evidence and documents adduced on behalf of the complainant / opposite party. Judgment and order have duly answered the question raised by the petitioner during trial as to the accountability, legality and validity of evidence and documents. As such I do not find any reason to interfere in the findings and judgment of learned Trial Court which has been affirmed by the learned Appellate Court. In the result the instant revisional application having no merit is liable to be rejected. Thus the application stands dismissed. The judgment passed by the learned Additional District and Sessions Judge, re-designated Court, Paschim Medinipur in Criminal Appeal No. 22 of 2010 dismissing thereby and affirming the judgment and order date April 29, 2010 passed by the learned Judicial Magistrate, 2nd Court, Paschim Medinipur in C.R. Case No. 80 of 2008 under Section 138 of the Negotiable Instrument Act remain uninterfered.