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2016 DIGILAW 269 (CAL)

Amarnath Jaiswal v. Biswanath Agarwal

2016-03-16

SIDDHARTHA CHATTOPADHYAY

body2016
JUDGMENT : Siddhartha Chattopadhyay, J. Calling in question the legal preganability of the Judgment dated 13th January, 2012 passed by the learned Judicial Magistrate, 5th Court at Barrack pore and the Judgment passed by the learned Additional Sessions Judge, Fast Track Court 3, of Barrackpore on 16.08.2013 in Criminal Appeal No. 3 of 2012, the petitioner has filed this application under Section 401 read with Section 482 of the Code of Criminal Procedure, 1973. 2. According to the petitioner, the learned Courts below failed to appreciate the position of law and the evidence in its proper perspectives and specifically the evidence of D.W. 1 was not at all considered properly. There are discrepancies in the evidence, yet the learned Courts below held him guilty. 3. In the interest of effective adjudication factual aspect needs to be restated. The complaint case in a capsulated form is such that he is one of the partners of M/s Barrackpore Auto Services and the accused took a loan of Rs. 5,00,000/- (Rupees Five Lakhs) from the complainant to meet his financial problem and he undertook to repay the same after getting a bank loan. The accused, in discharge of his liability to repay, had issued one account pay cheque bearing No. 546103 dated 24.01.2004 for Rs. 2,50,000/- drawn on ABN AMRO Bank, Durganagar Branch in favour of the complainant. The complainant thereafter presented the said cheque for encashment but the cheque was dishonoured with a remark of the concerned bank “full cover not received.” The said intimation was given to the complainant on 22.01.2004. Thereafter, the complainant sent a demand notice as per law by registered post with A.D. asking the accused to pay the amount of aforesaid dishonour cheques and the said notice was received by the accused on 26.02.2004. In spite of that notice the accused did not pay any single farthing within the stipulated period which compelled the complainant to initiate the proceeding against him. 4. It appears from the impugned order of the learned Magistrate that she has examined the accused under Section 251 of Cr.P.C. and the substance of accusation was read over and explained to the accused to which he pleaded not guilty and claimed to be tried. 5. Learned Trial Court has formulated the point for consideration. 4. It appears from the impugned order of the learned Magistrate that she has examined the accused under Section 251 of Cr.P.C. and the substance of accusation was read over and explained to the accused to which he pleaded not guilty and claimed to be tried. 5. Learned Trial Court has formulated the point for consideration. Evidence was recorded and after considering the evidence she has found the accused guilty of committing the offence under Section 138 of N.I. Act and has convicted him. Learned Trial Court found the accused guilty and convicted him to suffer simple imprisonment for three months and also directed to pay a sum of Rs. 2,50,000/- as compensation under Section 357 (3) of Cr.P.C. for financial loss and harassment in default to suffer simple imprisonment for two months more. 6. Challenging the said finding the convict has preferred an appeal bearing No. 3 of 2012 which was also dismissed by the Additional Sessions Judge, Fast Track 3rd Court, Barrackpore, North 24 Parganas. 7. At the time of hearing learned Counsel appearing on behalf of the petitioner has contended that the learned Court below did not consider that there was no resolution of the partnership firm to accommodate loan to any other person. Secondly, the cheque was not written by the accused so he should be given “benefit of doubt.” As against this learned Counsel appearing on behalf of the opposite party contended that the evidence as recorded by the Trial Court is justified and that there is proper appreciation of evidence. Learned Counsel appearing on behalf of the Opposite Party No. 1 mainly contended that the compensation amount is not proper and other part of the sentencing portion is well justified. 8. Trial Court as well as First Appellate Court has analysed the evidence and so there is little scope for the Revisional Court to re-appreciate the evidence unless there is gross mistake on their part. It appears that the learned Trial Court has considered the evidence. It goes without saying that whether the partnership firm had taken a resolution to accommodate loan or not that is nor the concern of the accused. He is not supposed to challenge it. If there is no resolution, other partner may raise such question. Admittedly, the accused petitioner has put his signature in the cheque. Therefore, who had written that is inconsequential. He is not supposed to challenge it. If there is no resolution, other partner may raise such question. Admittedly, the accused petitioner has put his signature in the cheque. Therefore, who had written that is inconsequential. The accused petitioner himself in course of his examination under Section 313 of Cr.P.C. admitted that the impugned cheque was dishonoured and he did not pay the cheque amount even after getting the demand notice. The impugned cheque was exhibited. The First Appellate Court had also considered the evidence on record in its proper perspectives and came to the finding that the order of the Trial Court does not warrant any interference. In course of evidence the accused petitioner deposed under the style of D.W.1. According to him, for the purpose of taking a bank loan, he had issued some blank cheques bearing his signature. He candidly rejected the complainant’s assertion that he had taken the loan. In course of cross-examination he had admitted that he did not give any reply to the demand notice of the complainant stating that he did not take the loan and he had issued blank cheques on a good faith that the same were required for obtaining a bank loan. He also admitted that even after getting the notice he did not lodge any complaint against the complainant regarding the impugned cheque. Therefore, conduct of the accused petitioner indicates that he is telling lie only to save his skin from the net of law. Both the Courts below held him guilty and this Court put a seal of approval so far as conviction is concerned. 9. One thing that has been lost sight of by both the Courts in regard to compensation. Admittedly, the cheque amount was Rs. 2,50,000/- and the learned Trial Court had the power to award compensation to the extent of double the amount of the cheque but that is not done. Learned First Appellate Court has also lost sight of the same. It appears that the alleged offence took place in 2004 i.e. the litigation is pending for a decade and the complainant has to bear the expenses of such three tiers litigation for no fault of his own for the last 12 years. Therefore, I am of the view that the purpose of justice shall be best served if the convict petitioner be directed to pay compensation to the tune of Rs. Therefore, I am of the view that the purpose of justice shall be best served if the convict petitioner be directed to pay compensation to the tune of Rs. 5,00,000/- instead of Rs. 2,50,000/-, which has been awarded by the Trial Court. At the time of hearing learned Counsel appearing on behalf of the convict petitioner has submitted that recovery of money is the principle of the offence under Section 138 of N.I. Act and not to send the convict behind the bar. It is an economic offence concerning two private parties. The main mission of such type of cases is to ensure the recovery of money and not to send the convict for imprisonment. That is why and for that reason substantive sentence of imprisonment is not mandatory. The convict petitioner is hereby directed to pay double of the cheque amount i.e. Rs. 5,00,000/- as compensation to the complainant within 15 days from the date of this order failing which he is to suffer rigorous imprisonment for six months. Therefore, this Court is not inclined to pass substantive sentence for imprisonment as awarded by the learned Trial Court. If the said amount of Rs. 5,00,000/- is not paid, learned Trial Court shall take all possible steps for securing the presence of the convict petitioner and to send him to jail for serving the sentence as awarded by this Court. With this direction, this revisional application stands dismissed. 10. Let a copy of this order be sent to the learned Court below for his information and taking necessary action in accordance with law. 11. Urgent certified photocopy of this Judgment and order, if applied for, be supplied to the parties upon compliance with all requisite formalities.