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2016 DIGILAW 1056 (CAL)

Damodar Dey @ Damu Dey v. State of West Bengal

2016-12-21

INDRAJIT CHATTERJEE

body2016
JUDGMENT : Indrajit Chatterjee, J. 1. This Court is hearing one appeal against an order of acquittal dated June 10, 2009 passed by the learned Judicial Magistrate, 1st Court, Garbeta, District – West Medinipur, in connection with Complaint Case No. 3 of 2005 in a proceeding under Section 138 of the Negotiable Instrument Act, 1881 (hereinafter referred to as the said Act of 1881). 2. The case relevant for appreciation of this appeal can be stated in brief thus; that the accused and the present appellant were in business terms since long and as per final settlement, which was arrived on April 19, 2004 it was agreed by the accused that the complainant will get Rs.4,67,587/- and one document was executed on that very date which was marked as ‘Ext. 1’ before the learned Trial Court. It may be noted that the said document was executed on the ‘letter head’ of the son of the accused namely Sanjoy Dey (Proprietor of Baba Sanyasi Tractor Services). The said document was handed over to the complainant but in spite of repeated requests from the complainant the accused was not paying the said dues to the complainant. 3. Thereafter, the complainant put pressure upon the accused to pay dues as stated above forthwith. The accused then come to the house of the complainant with one Salil Chowdhury (PW-2) on January 14, 2005 and the said accused voluntarily issued three cheques, being Cheque No. 9370152 dated January 14, 2005 of Rs. 24,000/-; Cheque No. 9370153 dated January 14, 2005 of Rs. 94,000/- and Cheque No. 9370154 dated January 14, 2005 of Rs. 94,000/- drawn on Bank of India, Dabcha Branch, District – West Medinipur in favour of the complainant/appellant. 4. It is further clear from the complaint that another witness that is Uttam Bag (PW-3) was also present when all those cheques were issued. The accused had one Bank Account bearing No. 7225 with the Bank of India, Dabcha Branch, and all those cheques referred to above were ‘account payee’ cheques in the name of the complainant. The complainant claimed that those cheques were issued in discharge of existing liability. 5. The accused had one Bank Account bearing No. 7225 with the Bank of India, Dabcha Branch, and all those cheques referred to above were ‘account payee’ cheques in the name of the complainant. The complainant claimed that those cheques were issued in discharge of existing liability. 5. Those three cheques were deposited on January 14, 2005 with the State Bank of India, Garbeta Branch, the banker of the complainant for enchashment but unfortunately those three cheques were dishonoured and the return memos dated February 10, 2005 mentioned that all those cheques were dishonoured as there was no sufficient fund. This fact was communicated by the Branch Manager, State Bank of India as per letter dated February 12, 2005. Thereafter, notice was issued to the accused/opposite party on February 25, 2005 through the Advocate of the complainant and the said registered letter posted on February 26, 2005, which was received by the accused on February 28, 2005 and the Acknowledge Due Card duly returned to the Advocate of the complainant. The complainant further claimed that in spite of such service of notice upon the accused he did not make any attempt to pay the said amount and as such the complaint was filed under Section 138 of the said Act of 1881. 6. Process was issued. The accused appeared. Before the learned Trial Court four witnesses were examined on behalf of the complainant including the complainant, two public witnesses and the Branch Manager. Several documents were proved including the agreement dated April 19, 2004, the Bank Memos of dishonoured cheques, copy of the notice along with Acknowledgement Due Card etc. 7. The defence made out a case that there was never any business terms in between the parties, that the accused was suffering from cancer and at that time P.W. 2 (Salil Chowdhury) and P.W. 3 (Uttam Bag) and the complainant managed to get his signatures on three blank cheques and as such this appellant/complainant is not entitled to get any advantage of Section 138 of the said Act of 1881. 8. The defence did not adduce any oral and documentary evidence and the Trial Court on appreciation of oral and documentary evidence adduced by the complainant and hearing the learned Advocate of the parties, acquitted the accused in respect of the charge under Section 138 of the said Act of 1881. 9. 8. The defence did not adduce any oral and documentary evidence and the Trial Court on appreciation of oral and documentary evidence adduced by the complainant and hearing the learned Advocate of the parties, acquitted the accused in respect of the charge under Section 138 of the said Act of 1881. 9. The learned trial court practically disbelieved the story of the complainant that there was business relationship and that those cheques were issued in discharge of existing liability and the learned trial court preferred not to draw adverse presumption under section 139 of the said Act. The learned trial court on scrutiny of the cheques opined that those cheques were signed blank by the present accused and the body of the cheques were filled in by the complainant and as such learned trial court did not rely on the issuance of those cheques in discharge of existing liability. He also attacked exhibit 1 on the grounds that there is no signature of this accused appearing on the said document to say that actually there was such dues to the tune of Rs.4,67,587/-. 10. Learned counsel appearing for the appellant has filed written notes of argument. I have gone through that written notes and also the judgment of the Apex Court as reported in (2010) 11 SCC 441 (Rangappa v. Sri Mohan) wherein the Apex Court held that holder of a cheque carries with him a presumption regarding existing liability and unless such presumption is rebutted by the accused the court will be inclined to grant relief as prayed for by the holder. The Apex Court further observed that one accused while discharging the burden of proof placed upon him under the statute may not examine himself as he has right to maintain silence but the burden on him may be discharged on the basis of the materials already brought on record that those cheques were issued not in discharge of existing liability or in any other circumstance. Learned counsel also took me to section 102 of the Indian Evidence Act to say that here the burden was on the accused to prove that those cheques were issued by perpetrating force on him but to substantiate this he did not adduce any oral or documentary evidence. 11. Learned counsel also took me to section 102 of the Indian Evidence Act to say that here the burden was on the accused to prove that those cheques were issued by perpetrating force on him but to substantiate this he did not adduce any oral or documentary evidence. 11. He further submitted that the cheques were issued on January 14, 2005 and those were dishonoured as per bank memo on February 10, 2005 i.e. after twenty-seven days of the issuance of the cheques. Learned counsel further argued that even after issuance of the legal notice this accused did not take any step. He further submitted that this accused did not instruct his bank to make stop payment and that he did not approach the police station to file any complaint against this complainant and the two other witnesses for taking of forcible signatures on the three cheques. 12. Thus he submitted that in view of the presumption granted under section 139 of the said Act the holder of the cheque is in a better footing than that of the drawer as one negotiable instrument can be said to have been issued for value. He further argued that the circumstance as made out before the learned trial court was enough to draw presumption of section 139 of the said Act. He further contended that mere denial of the passing of the consideration apparently does not appear to be any defence and something which is probable has to be brought on record for getting the benefit of shifting the onus of proving the complaint. He further submitted that to disprove the presumption the accused has to bring on record such facts and circumstances upon consideration of which the court may either believe that the consideration did not exist or its non-existence was so probable that a prudent man would, under the circumstance of the case, shall act upon the plea that it did not exist (reliance placed on the decision of the Apex Court as passed in [Bharat Barrel and Drum Mfg. Co. vs. Amin Chand Payrelal, (1999) 3 SCC 35 ]. 13. Co. vs. Amin Chand Payrelal, (1999) 3 SCC 35 ]. 13. Thus on the basis of all these arguments learned counsel submitted that the learned trial court could not appreciate the oral or documentary evidence on record and preferred to acquit the accused in respect of the charge under Section 138 of the said Act and as such this order of acquittal has to be reversed by this Court. He also took me to page 10 of the paper book to show that this accused was at that point of time one Headmaster of Ukhla Primary School and as such he was more than a prudent man and an educated person. 14. Learned counsel appearing for the accused/opposite party took me to the judgment of the learned trial court at page 39 of the paper book wherein the learned trial court disbelieved the complainant regarding the story of final settlement. He also took me to page 40 paper book to say that the complainant failed to produce any evidence to prove as regards storing of alleged quantity of potatoes in that Agrani Cold Storage. He also contended that the learned trial court in that page 40 came to the conclusion that the writings on those cheques were not writings of this accused and that the court took the role of a handwriting expert. He also took me to page 46 of the paper book containing the judgment of the learned trial court to show that the learned trial court disbelieved the story of the complainant that the cheques were issued by the accused/opposite party in discharge of existing debt or liability and as such the said court preferred not to draw presumption of section 139 of the said Act. He further contended that the observation of the trial court that the prosecution failed to succeed to any extent in substantiating any of the allegations levelled against the accused to make him guilty of the alleged offence under Section 138 of the said Act was a right conclusion. 15. Apart from the judgment of the Apex Court as passed in Rangappa (supra) this Court can also rely upon the single bench decision of this Court as passed in (2015) 1 CAL LT 626 (HC) (Nita Kanoi @ Bansal Vs. 15. Apart from the judgment of the Apex Court as passed in Rangappa (supra) this Court can also rely upon the single bench decision of this Court as passed in (2015) 1 CAL LT 626 (HC) (Nita Kanoi @ Bansal Vs. M/s. Paridhi & Anr.) wherein this court held that where one person signs and delivers to another a paper stamped in accordance with law relating to negotiable instrument, either wholly blank or having written thereon, an incomplete negotiable instrument, he thereby gives prima face authority to the holder thereof to make or complete, as the case may be, upon it, a negotiable instrument for any amount specified therein and not exceeding amount covered by the stamp. This court can also rely upon one unreported judgment as passed by this Court in CRA No.625 of 2007 (Sujit Kumar Pal vs. State of West Bengal & Anr.) which was disposed of by this court on 23.11.2016 wherein also similar situation was before the floor of this court and the accused claimed that those cheques were signed by him but it was not issued in discharge of existing liability wherein the accused further claimed that body of the cheque was not filled in by him and this Court reversed the order of acquittal relying upon the decision of this Court as passed in Nita Kanoi (supra). 16. I have taken into consideration the factual aspect of this case before the floor of this Court. I have perused the evidence on record both oral and documentary. The accused issued all the three cheques on 14.01.2005 and when trial started he came up with a defence case that those signatures were obtained forcibly. Thus, the signatures on the cheques are admitted but allegedly it was taken on force. I have already said that the cheques were issued on 14.01.2005 and the banker’s memo is dated 10.02.2005 thus there was a gap of 25 days in between the issuance of the cheques and refusal by the banker to pay the amount as mentioned in those three cheques. I have already said that the cheques were issued on 14.01.2005 and the banker’s memo is dated 10.02.2005 thus there was a gap of 25 days in between the issuance of the cheques and refusal by the banker to pay the amount as mentioned in those three cheques. The accused opposite party who was admittedly one headmaster of a primary school at that point of time did not make any effort to inform his banker that the complainant with the help of two other witnesses managed to take his signatures on three blank cheques forcibly asking the banker to make stop payment in respect of those three cheque numbers. 17. He could have taken up the matter with the concerned police station to file a case against this complainant and two others under Section 384 of the Indian Penal Code by filing one FIR. The accused being a prudent man did not approach on that line also. He got the legal notice on 28.02.2005 and preferred not to give any reply to the said notice by establishing his case as he tried to establish at the time of trial. He only remained silent over the matter. 18. All these circumstances cannot go in favour of the present opposite party that is the drawer of the cheque. It is needless to mention that holder of cheque is in far better position than that of the drawer of the cheque as he has behind him the protection of Section 139 of the said Act. Section 139 of the said Act has inserted a rebuttal presumption in favour of the holder of the cheque. The drawer of the cheque may rebut the presumption by cogent oral and documentary evidence. As accused in a proceeding under Section 138 the accused has a right to be silent but he must prove the circumstance in which those cheques were issued by him. He cannot escape the legal liability by saying in 313 Cr.P.C or putting some questions to the witnesses of the complainant at the time of cross-examination that those cheques were only signed by him and the other portion of the cheque were filled in by some other persons. 19. The learned trial court took the role of one expert when he compared that handwritings on those cheques and concluded that the handwritings of the accused opposite party was not there on the cheques. 19. The learned trial court took the role of one expert when he compared that handwritings on those cheques and concluded that the handwritings of the accused opposite party was not there on the cheques. The trial court ought not to have usurped the role of the handwriting expert. The defence did not pray for any handwriting expert to compare his admitted handwriting with the handwriting appearing on those cheques. The burden was squarely on the accused opposite party to disprove that those three cheques were not issued in discharge of existing liability. 20. The reaction of a prudent man who issued such blank cheques about which I have said in previous paragraphs is not matching with the role played by this accused after those cheques were procured forcibly by the complainant and others. Practically there is no circumstance which can clinch the issue in his favour that those cheques were not issued in discharge of the existing liability if the subsequent conduct of the accused is considered. I repeat, he did not instruct the banker to stop payment and did not take up the matter with the police station to lodge any FIR against the complainant and his men. He preferred to remain silent even though he was made aware through the legal notice regarding the dishonour of the cheques. Thus, the role of the accused as stated above was not that of an ordinary prudent man. 21. On scrutiny of the judgment of the learned trial court myself is satisfied that the learned trial court practically put the entire burden on the complainant appellant but that is not in consonance with the legal provision of Section 139 of the said Act. I have already said that there is always a presumptive value in favour of the holder of the cheque unless such presumption is rebutted through any convincing legal evidence. In the case before the floor of this Court the conduct of the accused opposite party cannot be said to be a convincing one to rebut the presumptive value in respect of issuance of those three cheques. 22. Thus, the judgment of the learned trial court cannot be supported either in fact or in law and as such I reverse the order of acquittal as passed by the learned trial court and convert it into an order of conviction. 22. Thus, the judgment of the learned trial court cannot be supported either in fact or in law and as such I reverse the order of acquittal as passed by the learned trial court and convert it into an order of conviction. As this is a summon procedure case there is no need to hear the accused opposite party on the point of sentence. 23. Thus, the accused opposite party is hereby found guilty in respect of the charge punishable under Section 138 of the Negotiable Instrument Act, 1981. The said accused opposite party is accordingly convicted in respect of the said offence and he is directed to suffer rigorous imprisonment for 4 months and he is further direct to pay compensation to the complainant appellant to the tune of Rs.4,24,000/- being the double of the amount of the cheques. In default of payment of this amount the accused opposite party will have to suffer further Rigorous Imprisonment for 1 and ½ year. While sentencing this accused this Court has take into consideration the fact that those cheques were issued before roughly 12 years from this date and during such long period the complainant had to bear the mental agony and financial loss. In these long 12 years the money value has eroded more than three times and double the amount of cheque cannot meet the ends of justice and as such this Court has preferred to impose suitable substantive punishment. 24. Thus, this appeal is considered and allowed. The accused opposite party must surrender before the learned trial court within two months from this day to serve out the sentence and at the same time on that date he must deposit before the learned trial court one Demand Draft in the name of the complainant covering the amount of compensation. If this order is not complied with within the stipulated period then the learned trial court will be at liberty to issue warrant of arrest against this accused opposite party without any further reference. 25. The department is directed to communicate this order to the learned trial court along with the lower court record forthwith by deputing one special messenger the cost to be borne by the present appellant and such cost must be deposited on the reopening day of the court after X-mas vacation. 26. 25. The department is directed to communicate this order to the learned trial court along with the lower court record forthwith by deputing one special messenger the cost to be borne by the present appellant and such cost must be deposited on the reopening day of the court after X-mas vacation. 26. Certified copy of this judgment, if applied for, be given to the parties on payment of usual fees.