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2015 DIGILAW 762 (CAL)

Sanjib Kumar Ghosh v. Dolon Adhikari

2015-09-10

INDRAJIT CHATTERJEE

body2015
JUDGMENT : Indrajit Chatterjee, J. 1. I am hearing this appeal as against the judgment and order of acquittal dated 28.06.2013 as passed by the Judicial Magistrate 4th Court-cum-Judicial Magistrate, Sealdah, South 24 Paraganas in complaint case No. 86 of 2011 wherein he was pleased to acquit the present respondent No. 1 hereinafter called as the private respondent. I may be noted that as per order dated 12.07.2011 has passed in complain case No. 86 of 2011 it was ordered by the learned Trial Court that in that case that is complaint case No. 86 of 2011 he will also decide complaint case Nos. 84 of 11 and 85 of 2011. It may be noted for further reference that cheque number, date and amount involved in this cases may be mentioned below: "1. In complaint case No. 86 of 2011 cheque No. 316566 dated 20.07.2011 for Rs. 25,000/-. 2. In complaint case No. 85 of 2011 cheque No. 168624 dated 11.10.2010 for Rs. 1,00,000/-. 3. In complaint case No. 84 of 2011 cheque No. 199167 dated 11.10.2010 for Rs. 15,500/-." 2. Thus, the total amount involved was Rs. 1,40,500/-. Three separate cases were filed as I have already told regarding the dishonoured all those three cheques. The common case of the complaint before the trial court was that those three cheques as mentioned above were issued by the private respondent on the dates mentioned above for the amount also mentioned above in discharge of existing liability. Those cheques were marked as Exbt. 1B, 1A and 1 respectively. Those cheques were presented by the present appellant to his banker. But, unfortunately, all the three cheques bounced with the remark either "insufficient fund" or "payment stop" by the drawer. Thereafter, notices were issued under Section 138B of the N.I. Act to the accused in respect of the three cheques but, unfortunately, original notices could not be produced before the learned trial court and only photo copies were produced and as such those were marked as X, X/1 and X/2 for identification. The returning memos were, however, marked Exbt. 2 series. A.D. cards were also placed before the learned trial court but there was no postal stamp on any of the A.D. cards. Those three cards were marked Exbt. 3 series. The returning memos were, however, marked Exbt. 2 series. A.D. cards were also placed before the learned trial court but there was no postal stamp on any of the A.D. cards. Those three cards were marked Exbt. 3 series. It is clear from the photo copies of the notices that those were posted to Dolan Adhikari, Beliaghata, Kolk-10, by speed post respectively vide postal receipt No. EW502206978IN, EW502207001IN and EW502206995 of such letters were posted from Kolkata G.P.O. on 26.11.2010. It may be noted that no original receipt was produced before the trial court issued by the postal department regarding the posting of such notices. 3. Learned Trial Court held that the appellant was not a professional money lender that the cheques were issued in discharge of existing liability and that all the cheques were dishonoured. The learned trial court acquit the accused on the ground of that there was no endorsement on the postal department on the A.D. cards. 4. It was argued by Mr. Mitra, learned Advocate, appearing on behalf of the appellant that in this case, the court should not rely to much on question No. 5 of the examination of the accused under Section 313 of the Code of Criminal Procedure wherein the accused candidly denied the receipt of notice as contemplated under Section 138-B of the Negotiable Instruments Act. On that point, he referred to a decision of the Apex Court as reported in Devender Kumar Singla Vs. Baldev Krishan Singla, (2005) 9 SCC 15 , the Apex Court "Mere because the accused stated that he had not received the shares or that the transaction took place on 27-7-1992 in his examination under Section 313 Cr.P.C. that is really of no consequence. The statement under Section 313 is not evidence (emphasis supplied by me). It is only the accused's stand version by way of explanation, when incriminating materials appearing against him are brought to his notice". 5. Mr. Mitra further submits by taking me to another decision of the Apex Court as reported in Indo Automobiles Vs. Jai Durga Enterprises and Others, (2009) CriLJ 326 wherein the Apex Court held that "Admittedly, notice under Section 138-B of the Negotiable Instruments Act was sent to the respondents through registered post and under a certificate of posting on the correct address of the respondents. Jai Durga Enterprises and Others, (2009) CriLJ 326 wherein the Apex Court held that "Admittedly, notice under Section 138-B of the Negotiable Instruments Act was sent to the respondents through registered post and under a certificate of posting on the correct address of the respondents. The High Court had quashed proceeding on the ground that although notice through registered post and also under certificate of posting was sent by the appellant/complainant to the respondents but because of the endorsement of the postal peon, the service could not be said to have been effected. In our view, the High Court was not justified in holding that service of notice could not found to be valid". 6. In that case, the Apex Court also relied upon its own decision reported in K. Bhaskaran Vs. Sankaran Vaidhyan Balan and Another, (1999) CriLJ 4606 wherein the Apex Court observed that " The context of Section 138-B of the Negotiable Instruments Act invites a liberal interpretation favouring the person who has the statutory obligation to give notice under the Act because he must be presumed to be the loser in the transaction and provision itself has been made in his interest and if a strict interpretation is asked for that would give a handle to the trickster cheque drawer. It is also well settled that once notice has been sent by registered post with acknowledgement in a correct address, it must be presumed that the service has been made effective. We do not find from the endorsement of the postal peon that the postal peon was at all examined". 7. In that decision the Apex Court also relied upon another judgment as reported in V. Raja Kumari Vs. P. Subbarama Naidu and Another, (2005) CriLJ 127 wherein it observed, "This Court reiterated the same principle and held that the statutory notice under Sections 138 and 142 of the Negotiable Instruments Act, 1881 sent to the correct address of the drawer but returning with the endorsement must be presumed to the be served to the drawer and the burden to show that the accused drawee had managed to get an incorrect postal endorsement letter on the complainant and affixed thereof have to be considered during trial on the background facts of the case". 8. 8. Be it noted that all the decisions referred to above by the learned Advocate appearing on behalf of the appellant were regarding quashing of a proceeding and not in criminal appeal, i.e., after any order of acquittal was passed of any accused was convicted. 9. Regarding question No. 4 of the 313 Cr.P.C. sheet, it was argued by the learned Counsel by taking me to Ext. A that it was this accused who as per the letter which was received by his banker on 13th October, 2009 instructed the banker to stop payment of several cheques including two cheques of these two complaint cases bearing Nos. 186442 dated 11.10.2010 and 199167 dated 11.10.2010. It may abe noted for future reference that in that Ext. 8 there is no mention of cheque No. 316566 dated 20.07.2010, which was subject matter of Complaint Case No. 86 of 2011. He further submitted that other points that is the existing liability and that the present appellant was a professional money lender are in favour of his client and no cross appeal has been filed. 10. On behalf of the respondents, it was submitted by Mr. Rana Mukherjee, learned Advocate, that the notices issued through the Advocate of the present appellant were not proved before the learned Trial Court, that on the Acknowledgement Due Cards there is no postal endorsement regarding on which dates those were served, that in 313 Cr.P.C., this accused-respondent specifically pleaded that he did not receive those notices, and in 313 the accused-respondent also claimed that he was not aware as to whether those cheques were dishonoured. He further submitted that the accused is a professional Money Lender and as such, 138 of the N.I. Act cannot be applied against this respondent. He further submitted that there was no existing liability on the part of the accused-respondent which is a must to be proved in a case under Section 138 of the N.I. Act. He frankly submitted that though in the judgment of the Trial Court, there is no reference that the learned Magistrate also dealt with C Case No. 84 of 2011 and 85 of 2011 but Mr. Mukherjee took me to the order of the learned Trial Court dated 12-07-2011 to say that clubbing order of those two cases were rightly made and the said order being not challenged before any forum, it was made absolute. Mukherjee took me to the order of the learned Trial Court dated 12-07-2011 to say that clubbing order of those two cases were rightly made and the said order being not challenged before any forum, it was made absolute. Thus, he did not raise any dispute on that score regarding the clubbing of those cases under Section 219 of the Cr.P.C. 11. Learned Advocate took me to the Single Bench decision of this Court as reported in Shibu Chakraborty Vs. Arati Poddar and Another, 100 CWN 415, wherein this Court observed that service of Demand Notice is an essential ingredient of the offence under Section 138 of the N.I. Act, 1881 and failure to comply with such demand notice is also essential ingredient to the offence. It was further observed by the learned Single Judge that legal factors cannot be ignored in any prosecution. In that case, before the learned Single Judge, it was not known what was the lawyer's letter which was sent to the accused nor it is known whether the letter was at all delivered to the accused and as such, the learned Single Judge concluded that there was no reasonable proof of service of Demand Notice on the accused. The learned Single Judge also acquitted the accused only on that ground. 12. The trial court held inter alia in favour of the appellants that the complainant was not a professional money lender that the accused respondent admitted that he issued the cheques and that the accused failed to prove that he had paid the amount mentioned in the cheques. The trial court though in the body of the judgment discussed that naturally three cheques were issued respectively for Rs. 15,500/-, Rs. 1,00,000/- and Rs. 25,000/-. Admittedly in the heading of the judgment there is no mention that C. Case No. 84 of 2011 and 85 of 2011 were being disposed of as per a common judgment being delivered in C. Case No. 86 of 2011. In the ordering portion there is no reflection that those complaint cases were disposed of as per the common judgment in C. Case No. 86 of 2011. On scrutiny of the lower court record and the body of the judgment I am satisfied that the complaint case No. 86 of 2011 also covered complaint case Nos. 84 of 2011 and 85 of 2011. Mr. On scrutiny of the lower court record and the body of the judgment I am satisfied that the complaint case No. 86 of 2011 also covered complaint case Nos. 84 of 2011 and 85 of 2011. Mr. Mukhopadhya, learned counsel for the respondent very fairly admitted that the case Nos. 84 of 2011 and 85 of 2011 were disposed of. 13. The learned trial court held that the notices were not served on the respondent as the A/D card did not bear any postal stamp of any post office and that no receipt of the postal department was filed. 14. A similar matter in between the parties has recently been dealt with by this bench in CRA No. 723 of 2013 delivered on 28/08/2015. The only difference in between these two appeals is that in that case the photocopy of the notice was marked as exhibit and there was no denial in examination under Section 313 Cr.P.C. that the notice was not received by the respondent of that case, but in the instant case the respondent has claimed that he did not receive any notice and that in the case in hand the photocopies of the notices were Marked 'X' series for identification and not marked as exhibits. 15. It is true that the statement made under Section 313 Cr.P.C. is not evidence. It is only the stand of the accused or version by way of explanation when incriminating materials appearing against him are brought to his notice as decided by the Apex Court in Devender Kumar Singla (supra). In that decision it was further held that absence of any suggestion during cross-examination cannot be made up by a statement under Section 313 Cr.P.C. as at stage the prosecution does not get an opportunity to question the accused about his stand in the statement under Section 313 Cr.P.C. 16. Now the question is what was the evidence in chief as regards service of notice. "8. That fact of such dishonor of the three cheques had been communicated to the accused person through legal notice dated 24.11.2010 issued by my Advocate Dipta Bhanu Dutt, posted on 26.11.2010 at the address of the accused given in the cause title through Speed Post with A/D demanding the payment of the amount. "8. That fact of such dishonor of the three cheques had been communicated to the accused person through legal notice dated 24.11.2010 issued by my Advocate Dipta Bhanu Dutt, posted on 26.11.2010 at the address of the accused given in the cause title through Speed Post with A/D demanding the payment of the amount. These are said three Xerox copies of notice given by my advocate on my instruction and it contains the signature of my advocate Dipta Bhanu Dutt whose signature I know is being marked as Exhibit-5 series. The said notices were given to the accused at the address of the accused under Section 138 of the Negotiable Instruments Act 1881 as amended up-to-date to bring to his knowledge about the dishonor of the cheques and requested to make payment of the said three dishonored cheques within 15 days from the receipt of the said notice. That the accused person receipts the notices on 29.11.2010 and acknowledge the same on A/D cards. The said three A/D cards returned to my advocate on 18.01.11 be marked as Exhibit-6 Series. 9. That in-spite of services of the said notices the accused person failed and neglected to pay the amount as demanded. The accused person has not even cared to reply to the said claimant." 17. The next question is whether the accused respondent in his cross-examination countered the issuance of notice issued by the Advocate of the complainant appellant. In cross-examination it was denied that the accused did not put any signature on the A/D card or that the signatures were manufactured. As regards the issuance of demand notice no question was put. Hence the question is whether the A/D cards were received by the respondent? If those A/D cards were signed by the accused respondent the trial court did not try to compare the signatures appearing on the A/D cards with the admitted signatures of the respondents. Such comparisons might have been done by the complainant through handwriting expert but when such endeavor was not under taken then the court will have to compare such signatures in its open eyes to administer substantial justice. 18. The admitted signatures are there in the cheques marked as Exhibit-I series, signature appearing on Exhibit-A that is the letter issued by the accused to his banker, bail bonds and vakalatnamas. 18. The admitted signatures are there in the cheques marked as Exhibit-I series, signature appearing on Exhibit-A that is the letter issued by the accused to his banker, bail bonds and vakalatnamas. I have compared all those admitted signatures with the signatures appearing on the A/D cards marked Exhibit-3 series. It needs no expert eye to come to this conclusion that the person who signed on the A/D cards was the person who signed on those admitted documents. Thus the claim to the defence before the trial court that he did not sign on the A/D cards appears to me to be a false statement. This accused respondent denied in his examination under Section 313 Cr.P.C. that he did not issue the cheques but his own document that Exhibit - A will show that at least he asked the banker to make "stop payment" in respect of cheque No. 186442. Then how can this court believe such an accused in a case which is a beneficial legislation in favour of the holder of the cheque, as decided by the Apex Court in K. Bhaskaran Vs. Sankaran Vaidhyan Balan and Another, (1999) CriLJ 4606. The holder of a cheque is backed by the presumption of Section 139 of the N.I. Act. It is a rebuttable presumption to be rebutted by the other side. 19. Thus this court is of the clear view that the accused appellant duly signed those A/D cards and as such he duly received the original notices, the photo copies of which were marked as X series for identification. It is true that photocopies are inadmissible in evidence, unless admitted, but in the instant case there was no question of production of the originals as those were in the possession of the accused respondent. As he denied the receipt of the notice there was no question of issuance of notice on him to produce the originals. 20. As this court has held that the accused respondent duly received the notice the Single Bench decision of this court in Shibu Chakraborty (supra) cannot apply in this case. The complainant could have produced the original postal receipts showing posting of the speed post letters to the accused respondent to get the benefit of M/s. Indo Automobiles (supra) but, the non-production of those cannot clinch the issue in favour of the respondent. 21. The complainant could have produced the original postal receipts showing posting of the speed post letters to the accused respondent to get the benefit of M/s. Indo Automobiles (supra) but, the non-production of those cannot clinch the issue in favour of the respondent. 21. Thus this court is satisfied that the cheques (Ext.-3 series) were issued in discharge of existing liability, that the cheques bounced for different reasons as per bank memos (not in dispute) and that the notices under Section 138B were duly received by the accused respondent. Thus the judgment of acquittal passed by the trial court is fit to be reversed and I do that. 22. Hence the respondent Dolon Adhikari is found guilty in respect of the charge punishable under Section 138 of the N.I. Act. The cheque amount was Rs. 1,40,500/- and all those were issued in the year 2010/2011. Thus, more or less five years have passed in this legal battle. The appellant is to be duly compensated. Thus, considering every aspect the accused appellant is sentenced to suffer R.I. for ten days and also to pay compensation amount under Section 357(3) of the Cr.P.C. to the tune of Rs. 1,81,000/- (one lakh eighty one thousand) to be paid to the present appellant. Such compensation must be paid within one month from this day. The respondent convict may note that if this amount is not paid he will have to suffer further period of rigorous imprisonment for one year. 23. Let a copy of this judgment be forwarded to the learned trial court along with the LCR for necessary action at once. 24. The accused respondent must surrender before the learned trial court to serve out the sentence within 30 days from this day, failure to surrender on the part of the appellant will lead to issuance of warrant of arrest as against him by the learned trial court. 25. Criminal section is directed to transmit the LCR by special messenger at the cost of the court to the learned trial court at once. 26. This appeal is thus allowed without any order as to costs. 27. Urgent certified copy be issued to the parties as per rules.