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2014 DIGILAW 751 (CAL)

Joykrishna Pal v. Golak Kumar Kundu

2014-08-12

JOYMALYA BAGCHI

body2014
JUDGMENT Joymalya Bagchi. J. Both the revisional applications are taken up together for hearing and dispose of the same by a common judgment and order. Order dated 22nd January, 2013 passed by the learned Sessions Judge, Hooghly in Criminal Appeal No.3 of 2012 modifying the judgment and order of conviction and sentence dated 22.12.2011 passed by the learned Judicial Magistrate, 4th Court, Hooghly in Cr. Case No.361 of 2006 by upholding conviction of the petitioner for commission of offence punishable under Section 138 of the Negotiable Instruments Act and directing the petitioner to pay a fine of Rs.10,000/- in default to suffer simple imprisonment for one month and further directing him to pay compensation of Rs.50,000/- with interest at the rate of 6% per annum thereon to the complainant in place and stead of substantive imprisonment imposed by the learned Magistrate. The prosecution case is to the effect that the opposite party is the owner of a proprietorship business viz., Gour Gopal Traders carrying on business of selling and supplying rice for the purpose of making parched rice. In good faith, the complainant supplied rice to the opposite party/complainant on credit. The petitioner in partial discharge of outstanding liability issued a cheque bearing No.048538 dated 22.8.2006 for a sum of Rs.50,000/-. He also paid a sum of Rs.50,000/- in cash. The said cheque on presentation was dishonored. A legal notice under Section 138(b) of the Negotiable Instrument Act was issued which was received by the petitioner/accused on 14.9.2006. The petitioner/accused sent a reply dated 15.9.2006 stating that he has already paid the said amount in cash. The opposite party/complainant disputed such fact and filed the petition of complaint. In the course of trial, the opposite party/complainant was examined as P.W.1. Number of documents were exhibited. The petitioner examined himself as D.W.1. The defence of the petitioner that there was no liability towards the opposite party/complainant and that the cheque had been issued as a security for the transaction. It was further claimed that the transaction was completed on March, 2004 and a sum of Rs.50,000/- was paid in cash on 30.7.2005 in full and final settlement of all liabilities. The trial court after considering the evidence on record came to a finding that the petitioner is guilty of the offence punishable under Section 138 of the Negotiable Instrument Act and imposed sentence of simple imprisonment for 18 months. The trial court after considering the evidence on record came to a finding that the petitioner is guilty of the offence punishable under Section 138 of the Negotiable Instrument Act and imposed sentence of simple imprisonment for 18 months. An appeal was preferred against such judgment and order of conviction and sentence by the petitioner/accused as well as by the opposite party/complainant. By common judgment and order dated 22.1.2013, learned Sessions Judge, Hooghly upheld the conviction of the petitioner under Section 138 of the Negotiable Instrument Act but converted the sentence from one of substantive imprisonment to one of fine and compensation, as aforesaid. Mr. Mallick, learned advocate for the petitioner submitted that the prosecution had failed to prove its case beyond reasonable doubt. He further submitted that the statutory presumption had been rebutted in view of the fact that an amount of Rs.50,000/- had been paid in cash on 30.7.2005 in full and final settlement of all dues. It was his further case that there is a pending civil suit by and between the parties being T. S. 85 of 2007 in respect of settlement of accounts. Learned advocate for the opposite party/complainant submitted that issuance of cheque and receipt of demand notice is admitted. He further submitted that the dues of the petitioner/accused towards the opposite party/complainant was to the tune of Rs.2,81,695/- and that payment of Rs.50,000/- in cash did not fully absolve such liability in respect whereof the cheque was issued. Accordingly, the prosecution case was proved beyond any reasonable doubt. He further submitted that this Court in exercise of its inherent jurisdiction ought to make alteration in the order of compensation by directing substantive imprisonment in default of payment of compensation, which was inadvertently omitted by the learned Sessions Judge. I have considered the submissions of the parties. Admittedly, the petitioner issued the cheque in question and the same was dishonoured. It is his specific case that the cheque was not issued against any legally enforceable debt or liability. On the other hand, the cheque was issued as a security for business transactions which had come to an end in March, 2004. I am unable to accept the version of the petitioner that there was no outstanding debt or liability towards the opposite party. On the other hand, the cheque was issued as a security for business transactions which had come to an end in March, 2004. I am unable to accept the version of the petitioner that there was no outstanding debt or liability towards the opposite party. Evidence has been led and the statement of accounts have been exhibited which shows that an outstanding amount of Rs.2,81,695/- was payable to the opposite party at the instance of the petitioner. No cogent evidence by the petitioner has been led to improbabalise such version. Hence, mere payment of cash amount of Rs.50,000/- on 30.7.2005 cannot probabalise the defence version that there was no outstanding debt or liability of the petitioner towards the opposite party/complainant at the time of presentation of the dishonoured cheque. Pendency of a civil suit inter se also does not rebut the statutory presumption to the effect that the cheque had been issued against legally enforceable debt or liability. For the aforesaid reasons, I am in agreement with the concurrent findings of the learned courts below that the dishonoured cheque had been presented for liquidation of legally enforceable debt or liability and the ingredients of offence have been proved beyond any reasonable doubt. Coming to the issue of sentence, I find that the compensation to be awarded has not been coupled with a default clause of substantive imprisonment. It is trite law that any money including compensation directed to be paid by an order of Court is to be recovered as a fine in view of Section 431 of the Criminal Procedure Code. Hence, the order of compensation ought to have been coupled with a default clause for imposing imprisonment in the event of its non-payment. Hence, in exercise of my inherent jurisdiction, I modify the order of sentence and direct that in default of payment of compensation amount, petitioner shall suffer simple imprisonment for one month more. I am informed that the petitioner has already deposited the fine amount. Accordingly, I direct the petitioner to appear before the learned trial court and pay the compensation amount along with interest within 30 days from date. Both the revisional applications are disposed of. Interim orders, if any, stands vacated.