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2014 DIGILAW 366 (CAL)

Madhumita Chatterjee v. State of West Bengal

2014-04-22

SUBRATA TALUKDAR

body2014
JUDGMENT : Subrata Talukdar, J. In this criminal revisional application the petitioner prays for quashing of complaint case no. C/716/11 of 2011 (TR 188/11) under Section 138 of the Negotiable Instruments Act, 1881 now pending before the learned Judicial Magistrate, 2nd Court, Alipore, 24 Parganas (South). The petitioner is the accused no. 2 in the said complaint. 2. The brief facts of the case are as follows:- a. That the complainant is one Debasish Ghosh who is the absolute owner of premises no. 31, Jatindas Road, Police Station: Lake, Kolkata-700 029; b. That the accused no.1 is the husband of the petitioner and a business relationship subsisted between the accused no.1 and the complainant. This business relationship also covered the promoting and development of around 10 cottahs property situated at 31, Jatindas Road, Police Station: Lake, Kolkata-700 029; c. Pursuant to the agreement between the complainant and the accused no.1, Swapan Chatterjee, the complainant paid a sum of Rs. 8,00,000/- to the firm of the accused no.1 and the accused no.2. However, the project did not materialise and in discharge of their alleged liability of Rs. 8,00,000/-, the accused persons issued an account payee cheque no.257161 of the said amount of Rs. 8,00,000/-. d. The cheque dated 15th June, 2010 drawn on State Bank of India, Ruby Park Branch, 198, Rajdanga Road, Kasba, Kolkata-700 017 returned with the memo dated 22nd November, 2010 with the remarks payment stopped by drawer. e. Subsequently, the complainant caused to be issued demand notice through his lawyer dated 03rd December, 2010 and the said demand notice returned with the endorsement not claimed. 3. Hence, the complaint under Section 138 of the N.I. Act. 4. Sri Gupta, Ld. Counsel appearing on behalf of the petitioner has principally canvassed the following points before this Court. 5. That the learned Magistrate failed to discharge jurisdiction vested in him by law by neglecting to peruse the cheque in dispute as annexed to the petition of complaint. The learned Magistrate further failed to examine the statement made in the petition of complaint as well as in the evidence-in-chief of the complainant. According to Sri Gupta a bare perusal the complaint will show that the cheque has been used by only person and process could not have been issued against two persons viz; Swapan Chatterjee, the accused no.1 and Madhumita Chatterjee, accused no.2 who is the present petitioner. 6. According to Sri Gupta a bare perusal the complaint will show that the cheque has been used by only person and process could not have been issued against two persons viz; Swapan Chatterjee, the accused no.1 and Madhumita Chatterjee, accused no.2 who is the present petitioner. 6. Sri Gupta argues that it is settled law that the liability under Section 138 of the N.I. Act shall lie against the drawer of cheque. Even the learned Magistrate is required to examine the identity the drawer of the cheque in exercise of powers under Section 202 of the Criminal Procedure Code. The learned Magistrate was within his competence to call for a report from the concerned bank. Such report would have conclusively settled the identity of the drawer of the cheque. 7. Sri Gupta also submits that issuance of process against the accused no. 2 and the present petitioner who claims not to be the drawer of the cheque shall amount to an abuse of the process of law. Mechanical issuance of process against both the accused persons show non-application of judicial mind and on such score the order taking cognizance is to be quashed by the Hon’ble Court. 8. Sri Gupta further draws the attention of this Court to Section 7 of the Negotiable Instruments Act. Section 7 defines drawer. Only the drawer is liable to be prosecuted under the N.I. Act. In the facts of this case although the account is a joint account but only the accused no.1, husband, is the drawer of the cheque. The proceedings can only lie against the husband and not against the present petitioner-accused no.2 who is in no way the drawer of the cheque. 9. To buttress his submission Sri Gupta relies on a supplementary-affidavit filed by him with copy to the opposite party annexing certificate of the concerned bank viz., State Bank of India, Ruby Park Branch. From the said certificate dated 27th February, 2014 the specimen signatures of both the accused no.1 and accused no.2 are attested by the Branch Manager of the Bank. 10. Taking this Court through the disputed cheque in question appearing at page 25 of CRR 2436 of 2013, Sri Gupta demonstrates that the signature on the said cheque and signature of the accused no.1 as certified by the bank appear to be that of the same person. 10. Taking this Court through the disputed cheque in question appearing at page 25 of CRR 2436 of 2013, Sri Gupta demonstrates that the signature on the said cheque and signature of the accused no.1 as certified by the bank appear to be that of the same person. However, the signature of the accused no.2, the petitioner is not to be found on the disputed cheque dated 15th June, 2010. 11. Sri Gupta reiterates that when it is evident at the very inception that the accused no.2-petitioner cannot be brought within the purview of proceeding under Section 138 of the Negotiable Instrument Act, the issuance of process against her will be a travesty of justice. Relying on the following decisions he submits that the learned Magistrate is required to apply his judicial mind to the validity of issuing process against a person who is not the drawer of the cheque. By failing to apply his judicial mind the learned Magistrate has perpetuated the continuance of a wrongful proceeding against accused no.2-petitioner. 12. In support of all the above contentions Sri Gupta relies on following decisions:- Pepsi Food Limited v. Special Judge and Ors. (reported in 1998 SCC (Cri) page 1400 paras 28 and 29); Mira Ghosh v. Mira Ghosh (reported in 2010 (1) CHN (CAL) 696 para 5; Aparna A. Shah v. Sheth Developers Private Limited and Another (reported in (2013) 8 SCC 71 paras 22,23); Reported decision in Rochana Dasgupta v. Deepak Kumar Kantilal in CRR No. 3955 of 2012; 13. Sri Gupta further points out that the provisions of Section 319 Cr.P.C. are adequate to take care of an eventuality arising from the fact that at a subsequent stage it transpires that the signature did not belong to the accused No.1-husband. He points out that in the event the present proceeding are allowed to continue qua the petitioner-accused no.2 her rights protected under the Constitution of India shall be infringed. 14. Per contra Sri Bhattacharya on behalf of the O.P. No. 1 complainant submits as follows:- (a) On 21st January 2011 the complaint was filed against 2 accused persons. Summons were issued against the petitioner-accused no.2 on 14th March, 2011. The warrants of arrest followed vide order dated 06th May, 2011. (b) Only on 08th February, 2011 the petitioner-accused no.2 surrendered and sought bail. Summons were issued against the petitioner-accused no.2 on 14th March, 2011. The warrants of arrest followed vide order dated 06th May, 2011. (b) Only on 08th February, 2011 the petitioner-accused no.2 surrendered and sought bail. Thereafter at the end of several adjournments taken by the petitioner-accused no.2, the present CRR No. 2436 of 2013 was filed before this Court on 08th July, 2013. (c) Relying primarily on a pure question of law pertaining to this Court power to quash proceedings at this stage, Sri Bhattacharya submits that the inherent power under Section 482 Cr.P.C. cannot be equated with a Court of Appeal. He reiterates that this Court is enjoined by the statute as well as by settled judicial authority to exercise its power under Section 482 Cr.P.C. cautiously in circumstances where facts are incomplete and hazy. The said interference would become even more cautious when evidence is yet to be assessed and produced at trial. This Court is restricted by its own discretion from enquiring into the reliability or genuineness of the allegations in the complaint. In short this Court cannot usurp the role of the learned Trial Magistrate. (d) On the point of signature Sri Bhattacharya submits that the complaint would show that the cheque was signed by both the accused persons. In etymological terms the signature of a person written in a distinctive manner as a form of identification cannot be emphatically stated to accurately belong to one person alone. In other words, according to Sri Bhattacharya the signature on the cheque in dispute and the attested signature of the accused no. 2 husband by the bank may mean either the signature of one person or the signature of two persons separately yet jointly given or may mean none of the above. In any event this Court is limited to examine whether the complainant in the complaint has made out a prima facie case for trial. 15. In this connection Sri Bhattacharya relies upon the following decisions : State of M.P. v. Surendra Kori (reported in (2012) 10 SCC 155 para 14, 15, 16); Iridium India Telecom Ltd. v. Motorola Incorporated & Ors. (reported in AIR 2011 SC 20 (1) reported in Para 44, 45); B. Jagadish v. State of A.P. (reported in AIR 2009 SC (Supp) 19 paras 27, 28, 29, 33); Smt. Nagawwa v. Veeranna Shivalingappa Konjalgi & Ors. (reported in AIR 2011 SC 20 (1) reported in Para 44, 45); B. Jagadish v. State of A.P. (reported in AIR 2009 SC (Supp) 19 paras 27, 28, 29, 33); Smt. Nagawwa v. Veeranna Shivalingappa Konjalgi & Ors. (reported in AIR 1976 SC 1947 (1) paras 2,4,5); Kewal Krishan v. Suraj Bhan & Anr. (reported in AIR 1980 SC 1780 para 9); Ajay Kumar Parmar v. State of Rajasthan (reported in 2012 AIR SCW 5492); Avishek Goenka v. Union of India (reported in AIR 2012 SC 3230 para 21); Raja Ram Dal Mill v. Gayatri Debi (reported in 2010 (1) Cal HN 507 paras 22, 25); T. Nagappa v. Y R Muralidhar (reported in AIR 2008 SC 2010 ); 16. Another limb of Sri Bhattacharya submission is on the scope of presummons enquiry, Sri Bhattacharya argues that the scope of enquiry under Section 202 is extremely limited viz., only to ascertain the truth or falsehood of the allegation made in the complaint. It is well-settled now in proceedings under Section 202 that the accused have got no locus standi to be heard on the question whether process should be issued against them/him or not. 17. The only stage at which the learned Magistrate can consider the prima facie evidence against the accused is at the stage of examining such evidence in trial. All that the Ld. Magistrate is required to do at the stages of Section 203 and 204 of Cr.P.C is to peruse the complaint and the evidence recorded during preliminary enquiry under Section 200 of Cr.P.C. for arriving at a prima facie triable issue against the accused persons. The above ingredients are sufficient only for issuing process and the learned Magistrate cannot be directed to act contrary to the statutory provisions. 18. In this Connection Sri Bhattacharya relies upon the following decisions:- Smt. Nagawwa v. Veeranna Shivalingappa Konjalgi & Ors. (reported in AIR 1976 SC 1947 (1) paras 2,4,5). Kewal Krishan v. Suraj Bhan & Anr.(reported in AIR 1980 SC 1780 para 9). 19. On the point of the identity of the accused as evidenced from the signature on the cheque Sri Bhattacharya relies upon three sections of the Evidence Act viz., Sections 45, 47 and 73. (reported in AIR 1976 SC 1947 (1) paras 2,4,5). Kewal Krishan v. Suraj Bhan & Anr.(reported in AIR 1980 SC 1780 para 9). 19. On the point of the identity of the accused as evidenced from the signature on the cheque Sri Bhattacharya relies upon three sections of the Evidence Act viz., Sections 45, 47 and 73. Under the said provisions the Court is empowered to seek the opinion of experts in respect of the signature of an accused person or the Court is competent to examine the signatures on its own motion. Such recourse can only be availed of at the stage of trial. Sri Bhattacharya vehemently argues that a mini trial cannot be conducted by this Court or by the learned Magistrate at the incipient stage of the case. He relies on AIR SCW 5492 (paras 11, 14, 18, 19, 23) in support of the above: 20. Sri Bhattacharya argues that the issue of who has signed the cheque can arise during the proceedings and must be considered after the closure of examination of the prosecution witnesses. The accused persons are not precluded at that stage from seeking the opinion of experts. In this regard he relies on the following decision: (2007) 2 SCC 258 paras 3 and 4. 21. Finally Sri Bhattacharya states that at the stage of arguments for quashing of an order taking cognizance, the petitioner/accused no.2 cannot be permitted to use the material which can be available to her at the stage of her defence in trial. The exercise of inherent jurisdiction by this Court is limited by the facts of a particular case. While public documents of unimpeachable character can be looked into in the present case the certificate of the Bank is neither a public document nor of unimpeachable character. Hence, such a document deserves scant attention. 22. Sri Bhattacharya relies on the following decisions: AIR 2009 SC (Supp) page 19 paras 27, 28, 29 and 33, 2014 STPL (Web) 187 (SC (paras 19 and 11), AIR 1991 SC page 1260(paras 16, 29, 28, 68). 23. Another plank of Sri Bhattacharya submission is that a judgment is an authority for what it decides. Citing the legal maxim that hard cases make bad law, Sri Bhattacharya submits that the general principle of law is always found to be better suited for application to common facts and circumstances in contradistinction to extreme cases. 23. Another plank of Sri Bhattacharya submission is that a judgment is an authority for what it decides. Citing the legal maxim that hard cases make bad law, Sri Bhattacharya submits that the general principle of law is always found to be better suited for application to common facts and circumstances in contradistinction to extreme cases. Relying on AIR 2012 SC 2320 (21) Sri Bhattacharya submits that the court is not expected to go into individual cases while dealing with the general interpretation of law. In this connection he also relies upon a decision reported in 2010 vol. 1 Calcutta High Court Notes 507 (22 to 25). In the light of all the above submissions Sri Bhattacharya argues that there no grounds made out by the petitioner for quashing the proceeding pending before the learned Magistrate. 24. Heard the parties. Considered the materials on record. 25. In the facts and circumstances of the present case this court is of the opinion that it must notice the public nature of the document filed by the petitioner by way of a supplementary affidavit. The said document pertains to the specimen signatures of two of the accused persons as attested by the Branch Manager of the State Bank Of Indian, Ruby Park Branch on which the said dishonoured cheque was drawn. 26. The Bank is a nationalised bank and the certificate has been issued at the request of the present petitioner pertaining to the pendency of the present CRR 2436 of 2013. 27. From a prima facie comparison of the said attested specimen signatures and the signature as appearing on the dishonoured cheque at pg. 24 of CRR 2436 of 2013, it does appear to the mind of this court that the signature on the cheque and the signature of present petitioner as attested by the Bank are acutely dissimilar. The provisions of Section 73 of the Indian Evidence Act clothe the learned Trial Court with the power to compare the authenticity of any signature which may be disputed during the proceedings. 28. To the further mind of this court the continuance of any criminal proceeding against an accused person who does not appear to have appended her signature on the dishonoured cheque shall amount to an abuse of the process of law. 28. To the further mind of this court the continuance of any criminal proceeding against an accused person who does not appear to have appended her signature on the dishonoured cheque shall amount to an abuse of the process of law. In this connection the relevance of the observation of the Hon’ble Apex Court in the Case of Pepsi Food Limited (supra) at paragraphs 28 and 29 cannot be lost sight of. In Pepsi Food the Hon’ble Apex Court was pleased to observe as follows:- "28. Summoning of an accused in a criminal case is a serious matter Criminal law cannot be set into motion as a matter of course. It is not that the complainant has to bring only two witnesses to support his allegations in the complaint to have the criminal laws set into motion. The order of the Magistrate summoning the accused must reflect that he has applied his mind to the facts of the case and the law applicable thereto. He has to examine the nature of allegations made in the complaint and the evidence both oral and documentary in support thereof and would that be sufficient for the complainant to succeed in bringing charge home to the accused. It is not that the Magistrate is a silent spectator at the time of recording of preliminary evidence before summoning of the accused. The Magistrate has to carefully scrutinise the evidence brought on record and may even himself put questions to the complainant and his witnesses to elicit answers to find out the truthfulness of the allegations or otherwise and then examine if any offence is prima facie committed by all or any of the accused. 29. no doubt the Magistrate can discharge the accused at any stage of the trial if he consider the charge to the groundless, but that does not mean the accused cannot approach the High Court under Section 482 of the code or Article 227 of the Constitution to have the proceeding quashed against him when the complaint does not make out any case against him and still must undergo the agony of a criminal trial." 29. From the above discussion in the case of Pepsi Food it is abundantly clear that every accused has the right to a consideration of the evidence against him at the pre summoning stage so that in the event the learned Trial Court does not find materials warranting issue of process against the said accused, in that event the said accused is spared of the agony of a criminal trial. 30. The law as applicable to the Negotiable Instruments Act contemplates the initiation of proceedings only against the drawer of the dishonoured cheque with the exception of Companies where the person responsible may be considered to be vicariously liable. The liability of the drawer qua the drawee stems from the signature appended to the cheque in question. In view of the fact that the same bank dealing with the accounts of the accused person and the cheque in question having been drawn on the said bank, the attested signature of the accused person supplied by way of a contemporaneous certificate cannot be ignored. 31. Therefore, this court finds prima facie substance in the argument of Sri Gupta that the petitioner is entitled to consideration of the evidence to establish the signatory of the said dishonoured cheque in question. In this connection this Court is of the further opinion that the contemporaneous certificate issued by the Bank in question which is in the nature of a public document having been supplied in relation to pending court proceedings is eligible to be taken into consideration by the learned Magistrate prior to proceeding further with the trial. 32. While respectfully noticing the ratios of the judgments cited by Sri Bhattacharya, this court finds prima facie on the basis of the materials on record that the observation of the Hon’ble Apex Court in Pepsi Foods (supra) deserves weighty consideration in facts of the present case. 32. While respectfully noticing the ratios of the judgments cited by Sri Bhattacharya, this court finds prima facie on the basis of the materials on record that the observation of the Hon’ble Apex Court in Pepsi Foods (supra) deserves weighty consideration in facts of the present case. This court is not unmindful of the arguments of Sri Bhattacharya on the role of the Court in exercise of its power under Section 482 Cr.P.C. or under Article 227 of the Constitution which has been discussed above in this judgment, but is inclined to take the view that in appropriate cases where the facts are both contemporaneous and staring at the face, it would be just and reasonable to direct the learned Magistrate to make an inquiry into the identity of the drawer of the cheque before proceeding further with the trial. 33. Accordingly the order impugned dated 24th January 2011 and 14th March 2011 passed by the Chief Judicial Magistrate, Alipore and the learned 2nd Judicial Magistrate, Alipore respectively in Complaint Case no. C/716/11 of 2011 is modified to the extent that the learned Magistrate shall examine to the identity of the signature as appearing on the dishonoured cheque in question based on the materials to be placed before him and, on satisfaction of such identity shall then proceed with the complaint. Needless to mention the learned Magistrate shall apply his mind independently on the issue of identity of the signatory of the dishonoured cheque in question without being influenced by any observation made by this court in this order. The proceedings shall thereafter continue in accordance with law. 34. CRR 2436 of 2013 is accordingly disposed of. There will be, however, no order as to costs. Application disposed of.