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2015 DIGILAW 704 (CAL)

Pulin Behari Pahari v. Gour Sundar Jana

2015-08-20

JOYMALYA BAGCHI

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JUDGMENT : Joymalya Bagchi, J. Both the revision petitions are taken up together for hearing and disposed of by a common order. 2. Two cheques, one bearing No.22277 dated 15.10.2007 for Rs. 30,000/- and another bearing No.22278 dated 26.10.2007 for Rs. 18,43,323/-, both drawn on Development Credit Bank Ltd., Gariahat Branch were allegedly issued by the petitioner in favour of the opposite party. The cheques on presentation were returned dishonoured to the opposite party on 22.12.2007. Cheque for Rs. 30,000/- was returned with the remark "payment stopped by the drawer" and the cheque for Rs. 18,43,323/- was returned with the remark "funds insufficient". Demand notices were issued by the petitioner through registered speed post with acknowledgement due card which was returned to the opposite party on 24.1.2008. Another set of demand notices were issued at another address of the petitioner which were served and such intimation was communicated to the opposite party by the Superintendent of Post Office, Contai. The petitioner failed and neglected to make payment and hence two prosecutions being C.R. Case No.47 of 2008 and C.R. No.48 of 2008 were instituted in respect of the aforesaid cheques. In the course of trial, the opposite party examined himself and exhibited a number of documents including the dishonoured cheques, bank return memos, demand notices and the reply dated 15.2.2008 given by the lawyer of the petitioner to the said demand notices. 3. The defence of the petitioner in both the trials was one of innocence and false implication. It was his specific plea that there was no relationship between the opposite party and the petitioner as commission agent in share trading business. It was also pleaded that the cheques had not at all been issued by him and he had not received any demand notice far less give any reply thereto. 4. In conclusion of the trial, the learned Magistrate by several judgments dated 29.7.2013 recorded conviction in both the cases. With regard to sentence, in C.R.47 of 2008 the petitioner was directed to undergo sentence simple imprisonment for three months and to pay compensation of Rs. 50,000/- in default simple imprisonment for three months more and in C.R.48 of 2008, learned Magistrate sentenced the petitioner to suffer simple imprisonment for one year and to pay compensation of Rs. 25,00,000/- and in default to undergo simple imprisonment for a further period of six months more. 5. 50,000/- in default simple imprisonment for three months more and in C.R.48 of 2008, learned Magistrate sentenced the petitioner to suffer simple imprisonment for one year and to pay compensation of Rs. 25,00,000/- and in default to undergo simple imprisonment for a further period of six months more. 5. The petitioner preferred appeals against the aforesaid judgments of conviction and sentence both dated 29.7.2013 being Criminal Appeal No.3 of 2014(In respect of C.R.47 of 2008) and Criminal Appeal No.2 of 2014 (In respect of C.R.No.48 of 2008). Both the appeals were dismissed by several judgments dated 17.6.2015. Thereafter, the two revision petitions assailing the aforesaid appellate orders of conviction and sentence have been filed. 6. Learned Counsel appearing for the revisionist in both the petitions submitted that no evidence was adduced to show that the opposite party was a commission agent of the petitioner in share transaction business. In fact, in course of cross-examination, opposite party could not show any income from share transaction business in his income tax papers. She, however, admitted that no evidence was adduced on behalf of the petitioner to probabilise his defence. She submitted that the demand notices were not received by her client and the reply was also not at the behest of her client. 7. Learned Counsel appearing for the opposite party/complainant submitted that the petitioner had failed miserably to rebut the presumption under Section 139 of the Negotiable Instrument Act. Admittedly, the cheques were signed by the petitioner. The demand notices were sent at the address of the petitioner and was replied thereto. Accordingly, the impugned orders do not call for any interference. 8. I have considered the rival submissions of the parties. I find that the cheques in question were duly signed by the petitioner and were returned unpaid with the endorsement "payment stopped by drawer" and "funds insufficient" respectively. Hence, it cannot be the defence of the petitioner that the cheques were not drawn by him on his own account. 9. Coming to the issue of demand notices, I find that the demand notices were sent by registered post at the known address of the petitioner. Acknowledgement cards were signed by the petitioner. A desperate plea has been raised that the signatures on the acknowledgement cards are not that of the petitioner. 9. Coming to the issue of demand notices, I find that the demand notices were sent by registered post at the known address of the petitioner. Acknowledgement cards were signed by the petitioner. A desperate plea has been raised that the signatures on the acknowledgement cards are not that of the petitioner. However, no evidence to probabilise such defence was adduced before the learned Magistrate and accordingly I am unwilling to accept the same. 10. With regard to the plea that the cheques had not been issued by the petitioner against legally enforceable debtor liability, I find that the opposite party had not adduced evidence with regard to the foundation of the transaction in connection with which he claimed the cheques had been issued. However, on the other hand, the petitioner had also not adduced any evidence whatsoever to probabilise the circumstances and the manner in which cheques duly executed by him came into possession of the opposite party and were subsequently dishonoured. 11. Initially, the petitioner had denied the issuance of the reply letter dated 15.2.2008 but in the course of hearing learned Counsel relied on it and submitted that it has been stated in the said letter that the cheques had been obtained out of duress and coercion and civil suit seeking cancellation of the said instruments had been filed. No such plea was, however, was raised before the learned Courts below and no evidence was adduced to probabilise such defence. Truth of the contents of the reply to the demand notice has to be duly proved by adducing evidence which the petitioner has singularly failed to do. Hence, I am unable to accept such belated plea raised by the learned Counsel for the petitioner and I am constrained to hold that in the light of the presumption under Section 139 of the Negotiable Instrument Act, there is no alternative but to come to the conclusion that the cheques had been issued against legally admissible debtor liability. 12. Lastly, it was argued that the offence was committed beyond the territorial jurisdiction of the learned Magistrate at Contai as the cheques were drawn and dishonoured on a bank situated at Gariahat in Kolkata. Reliance is placed on Dashrath Rupsingh Rathod v. State of Maharashtra & Ors., reported in (2014) 3 C. Cr. L. R. (SC) 233. 13. 12. Lastly, it was argued that the offence was committed beyond the territorial jurisdiction of the learned Magistrate at Contai as the cheques were drawn and dishonoured on a bank situated at Gariahat in Kolkata. Reliance is placed on Dashrath Rupsingh Rathod v. State of Maharashtra & Ors., reported in (2014) 3 C. Cr. L. R. (SC) 233. 13. I am of the view that the ratio in Dashrath Rupsingh Rathod v. State of Maharashtra & Ors., reported in (2014) 3 C. Cr. L. R. (SC) 233 does not apply to the instant case as conviction had already been recorded prior to the delivery of the said judgment relating to territorial jurisdiction. That apart, the appellate order of conviction cannot be called into question merely on the ground of lack of territorial jurisdiction in view of Section 462 of the Code of Criminal Procedure in the absence of any prejudice demonstrated on the face of the records. 14. For the aforesaid reason, I do not find any reason to interfere with the convictions recorded in the impugned judgments. 15. Coming to the sentences imposed, I find that in C.R.R.2638 of 2015, the petitioner has been sentenced to suffer simple imprisonment for three months and to pay a compensation of Rs. 50,000/- in default to suffer simple imprisonment for three months more. 16. In the factual backdrop of the case and to advance the cause of restitutive justice instead of deterrence, I reduce the quantum of substantive imprisonment imposed upon the petitioner and direct that he shall suffer simple imprisonment for one month only. The amount of compensation payable by the petitioner and/or default sentence imposed in relation thereto, however, are unaltered. 17. With regard to the sentence imposed on the petitioner in C.R.R.2639 of 2015, on similar grounds, I reduce the quantum of substantive imprisonment imposed upon the petitioner and direct that he shall suffer simple imprisonment for three months. The amount of compensation and/or default sentence imposed in relation thereto, however, shall remain the same. 18. The revision petitions are allowed to the aforesaid extent. Revisional applications are disposed of.