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2016 DIGILAW 638 (GAU)

Sundar Buragohain v. Himani Das

2016-07-18

PARAN KUMAR PHUKAN

body2016
JUDGMENT : These cases have arisen out of the judgment and order dated 12.3.2014 passed by the learned Addl. Sessions Judge No. 1, Kamrup (M), Guwahati in Crl. Appeal No. 177/2013 whereby the learned court affirmed the judgment of the learned Judicial Magistrate 1st Class, Kamrup (M), Guwahati in C.R. Case No. 5602C/2006 with modification of the amount of compensation awarded by the learned Magistrate. The learned Additional Sessions Judge while maintaining the sentence of simple imprisonment of 2 (two) months passed by the learned Magistrate, reduced the amount of compensation from Rs. 16 lacs to Rs. 10 lacs. 2. Heard learned counsels appearing for both the parties and perused the impugned judgment of the court below. 3. The factual aspects of the case, briefly stated, are that the appellant of the present appeal, Himani Das alleging commission of offence u/s 138 of the Negotiable Instruments’ Act (in short “ N.I. Act), filed a complaint against the respondent, Sunder Buragohain alleging therein that she had business relation with the accused respondent. The respondent against his existing liability issued two cheques bearing number 835977 dated 28.4.2006 for Rs. 4 lacs and cheque bearing number 835978 dated 28.4.2006 for Rs. 4 lacs drawn at Standard Chartered Bank, GNB Road, Ambari, Guwahati in favour of the complainant/appellant. When the appellant presented the cheques through her banker for encashment, those were dishonoured due to insufficiency of fund in the account of the respondent. The appellant then issued statutory notice to the respondent demanding payment of the cheque amount, but there was no response. Having no other alternative, the appellant, as complainant, filed the complaint case u/s 138 of the N.I. Act before the concerned Magistrate. 4. During the trial both the parties to the case examined themselves as witnesses and produced documents. The learned trial Magistrate on conclusion of the trial convicted the respondent u/s 138 of the N.I. Act and sentenced him to imprisonment and to pay compensation as stated above. Aggrieved by the judgment, the respondent preferred appeal before the learned Addl. Sessions Judge but the judgment of the trial court was affirmed in appeal. However, the quantum of compensation was reduced from Rs. 16 lacs to Rs. 10 lacs. Aggrieved by the judgment, the respondent preferred appeal before the learned Addl. Sessions Judge but the judgment of the trial court was affirmed in appeal. However, the quantum of compensation was reduced from Rs. 16 lacs to Rs. 10 lacs. Being aggrieved, the respondent of the appeal filed this appeal before this Court assailing the order of reduction in the quantum of compensation by the appellate court whereas the appellant has preferred the revision challenging the judgment of the appellate court. 5. Mr. A.K. Bhuyan, learned counsel appearing on behalf of the appellant (complainant) submits that the learned appellate court has committed manifest error by reducing the quantum of compensation from Rs. 16 lacs to Rs. 10 lacs. Mr. Bhuyan submits that the case relates to dishonour of a cheque in the year 2006 and due to prolonged litigation the complainant has sustained tremendous loss and injury and there was no justification for the appellate Court to reduce the quantum of compensation. The accused respondent although admitted his liability, have not yet paid a single penny to the complainant/appellant and the learned trial court has rightly awarded compensation of Rs. 16 lacs in favour of the complainant. Mr. Bhuyan also advanced his argument in connection with the revision preferred by the accused petitioner before this Court and submitted that there was concurrent finding of fact arrived at by the courts below which calls for no interference from this Court. Mr. Bhuyan further submits that the revisional power of the High Court cannot be exercised as a second appellate power and minute and in-depth re-examination of the entire evidence is uncalled for. 6. Mr. I. Choudhury, learned counsel for the revision petitioner assailing the judgment of the appellate court and the trial court submits that the learned courts below failed to properly appreciate the evidence on record and the evidence adduced by the revision petitioner as a defence witness has not been taken into consideration. He further submits that the complainant failed to substantiate her case and is not entitled to any compensation from the accused petitioner and the judgment of the appellate court itself is liable to be set aside. 7. The learned Addl. He further submits that the complainant failed to substantiate her case and is not entitled to any compensation from the accused petitioner and the judgment of the appellate court itself is liable to be set aside. 7. The learned Addl. Public Prosecutor submits that in view of concurrent finding of fact arrived at by both the courts below there is no necessity for the revisional court to undertake in-depth re-examination and upset the concurrent finding of the Courts below. In the backdrop of the above contention, it is essential at first to decide as to whether the appellate court has committed any illegality by affirming the judgment of the trial court convicting the revision petitioner u/s 138 of the N.I. Act. 8. The principle of law involving the revisional power of the High court in case of concurrent finding of the courts below has been laid down by the Apex Court in a number of cases. 9. In State of Maharashtra v. Jagmohan Singh Kuldip Singh Anand And Others and Satish Kaur Sahni v. Jagmohan Singh Kuldip Singh Anand And Ors. reported in (2004) 7 SCC 659 , the Apex Court while examining the revisional power of the High Court and its scope to exercise such power has observed as follows : “22. The revisional court is required to exercise all the powers conferred on the appellate court by virtue of the provisions contained in Section 401 CrPC. Section 401 CrPC is a provision enabling the High Court to exercise all powers of an appellate court, if necessary, in aid of power of superintendence or supervision as a part of power of revision conferred on the High Court or the Sessions Court, Section 397 CrPC confers power on the High Court or Sessions Court, as the case may be, “for the purpose of satisfying itself or himself as to the correctness, legality or propriety of any finding, sentence or order, recorded or passed, and as to the regularity of any proceedings of such inferior court”. It is for the above purpose, if necessary, the High Court or the Sessions Court can exercise all appellate powers. Section 401 CrPC conferring powers of an appellate court on the revisions court is with the above limited purpose. It is for the above purpose, if necessary, the High Court or the Sessions Court can exercise all appellate powers. Section 401 CrPC conferring powers of an appellate court on the revisions court is with the above limited purpose. The provisions contained in Section 395 to Section 401 CrOC, read together, do not indicate that the revisional power of the High Court can be exercised as a second appellate court.” 10. Applying the above principles of law laid down by the Apex Court to the facts of the present case, I have found that both the courts below came to the finding on the basis of the materials placed before the courts and the evidence on record that the complainant had business relation with the accused and to liquidate the existing liabilities, he issued two cheques for Rs. 4 lacs each, in total Rs. 8 lacs, to the complainant which were dishonoured on presentation before the Bank due to insufficiency of fund. The complainant not only produced the cheques Exts. A and B but also proved that the accused admitted his liability by his letter Ext. F. The accused also admitted in his examination u/s 313 Cr.P.C. that the said letter was written by him but it was with regard to another account and not in connection with the cheques of this case. But the accused could not discharge the burden of proving that the letter was not issued by him in connection with the cheques of the present case. Moreover, the cheque numbers and the amount mentioned therein were same with that of the present case. The plea taken by the accused was obviously disbelieved by the courts below and I find no reason to interfere with the concurrent finding in this regard. The complainant proved to the satisfaction of the courts that the accused issued the cheques in her favour and she was the holder of the cheques which were dishonoured by the bank due to insufficiency of fund. 11. Under Section 118 of the N.I. Act, unless the contrary is proved, it is to presumed that the negotiable instrument (including a cheque) had been made or drawn for consideration. Under Section 139 of the N.I. Act, unless the contrary is proved, it is to be presumed that the holder of the cheque received the cheque for discharge, in whole or in part, of debt or liability. Under Section 139 of the N.I. Act, unless the contrary is proved, it is to be presumed that the holder of the cheque received the cheque for discharge, in whole or in part, of debt or liability. It is well settled in complaints u/s 138 of the N.I. Act that the court has to presume that the cheque has been issued for debt or liability but the presumption is rebuttal and the burden of proving that a cheque had been issued not for debt or liability is on the accused. But the accused failed to rebut the presumption available to him u/s 118 and 139 of the N.I. Act. The signature of the accused has been proved as admitted and there is no doubt that the cheques related to the account of the accused. In the instant case, the learned trial court rightly raised the initial presumption u/s 139 of the N.I. Act in favour of the complainant which is a mandatory presumption and even though the accused is entitled to rebut the said presumption, he has failed to do so. It is well settled that the defence raised by way of rebuttal evidence must be probable and capable of being accepted by the court. In the case in hand, the accused made a feeble attempt to show that the cheques were not issued in the name of the complainant but those were blank cheques signed by him and given to the husband of the complainant, namely, Tapan Das in connection with some banking transactions by one Monoj Gohain with whom the accused had business relation, but the accused failed to discharge the burden of proving that the cheques were not issued to the complainant. He admitted to have received the legal notice and admittedly has not given any reply. He is a qualified person having MA Degree in Sociology and he himself in Ext. F letter dated 15.3.07 in para 2 admitted his existing liabilities and to liquidate the liabilities he issued Exts. A and B cheques each for Rs. 4 lacs. In Ext. F it is written clearly that the accused is under financial hardship and he is ready to pay the entire amount to the complainant within 3 (three) months. 12. F letter dated 15.3.07 in para 2 admitted his existing liabilities and to liquidate the liabilities he issued Exts. A and B cheques each for Rs. 4 lacs. In Ext. F it is written clearly that the accused is under financial hardship and he is ready to pay the entire amount to the complainant within 3 (three) months. 12. Having regard to the facts and circumstances of the case and the submissions of the learned counsel and the principles of law involved and on an overall assessment of the evidence on record, the Trial Magistrate as well as the learned Addl. Sessions Judge came to the finding that the accused in due discharge of his debt and liability issued cheques in favour of the complainant which were dishonoured due to insufficiency of fund. I do not find any reason whatsoever to disagree with the concurrent finding of fact arrived at by the courts below and consequently, the judgment of the learned appellate court stands affirmed. 13. With regard to the quantum of compensation which has been reduced by the appellate court, I have found that the compensation has been awarded in terms of Section 357 (3) of the Code of Criminal Procedure. Before delving into section 357 of the Code, it would be appropriate to have a glance at Section 138 of the N.I. Act which provides that when a cheque is dishonoured, the person drawing the cheque shall be deemed to have committed an offence and shall, without prejudice to any provision of the Act, be punished with imprisonment for a term which may extend to one year or with fine which may extend to twice the amount of the cheque or with both. Subsequently, Section 138 was amended with effect from 6.2.2003 increasing the period of imprisonment imposable to 2 (two) years. 14. Subsequently, Section 138 was amended with effect from 6.2.2003 increasing the period of imprisonment imposable to 2 (two) years. 14. Now coming to section 357 of the Code of Criminal Procedure relating to payment of compensation, I have found that the learned Magistrate has awarded compensation in terms of Section 357 (3) of the Cr.P.C. which provides that – ”when a court imposes a sentence, of which fine does not form a part, the court may, when passing judgment, order the accused person to pay, by way of compensation, such amount as may be specified in the order to the person who has suffered any loss or injury by reason of the act for which the accused person has been so sentenced”. 15. On a plain reading of the Section it is clear that the power can be exercised only when the court imposes the sentence of which fine does not form a part. In the present case, neither the trial court nor the appellate court has imposed any fine while passing the sentence and compensation obviously has been awarded u/s 357 (3) of the Code and as such, the same cannot be faulted with. 16. Now it is to be decided as to whether the amount of compensation awarded by the trial court is too excessive and not in conformity with the provisions of Section 357 (3) of the Code. 17. In R. Vijayan V. Baby and Another reported in (2012) 1 SCC 260 the Hon’ble Apex Court has observed as follows :- “It is sometimes said that cases arising under section 138 of the Act are really civil cases masquerading as criminal cases. The avowed object of Chapter XVII of the Act is to "encourage the culture of use of cheques and enhance the credibility of the instrument". In effect, its object appears to be both punitive as also compensatory and restitutive, in regard to cheque dishonour cases. Chapter XVII of the Act is an unique exercise which blurs the dividing line between civil and criminal jurisdictions. It provides a single forum and single proceeding, for enforcement of criminal liability (for dishonouring the cheque) and for enforcement of the civil liability (for realization of the cheque amount) thereby obviating the need for the creditor to move two different fora for relief. This is evident from the following provisions of Chapter XVII of the Act. It provides a single forum and single proceeding, for enforcement of criminal liability (for dishonouring the cheque) and for enforcement of the civil liability (for realization of the cheque amount) thereby obviating the need for the creditor to move two different fora for relief. This is evident from the following provisions of Chapter XVII of the Act. (i) The provision for levy of fine which is linked to the cheque amount and may extend to twice the amount of the cheque (section 138) thereby rendering section 357(3) virtually infructuous in so far as cheque dishonour cases. (ii) The provision enabling a First Class Magistrate to levy fine exceeding Rs.5,000/- (Section 143) notwithstanding the ceiling to the fine, as Rs.5,000/- imposed by section 29(2) of the Code; (iii) The provision relating to mode of service of summons (section 144) as contrasted from the mode prescribed for criminal cases in section 62 of the Code; (iv) The provision for taking evidence of the complainant by affidavit (section 145) which is more prevalent in civil proceedings, as contrasted from the procedure for recording evidence in the Code; (v) The provision making all offences punishable under section 138 of the Act compoundable.” 18. The Apex court also held in the aforesaid judgment that “in those cases where the discretion to direct payment of compensation is not exercised, it causes considerable difficulty to the complainant, as invariably, by the time the criminal case is decided, the limitation for filing civil cases would have expired. Thus, the Supreme Court has clearly held that the direction to pay compensation by way of restitution in regard to loss on account of dishonor of the cheque should be practical and realistic and for maintaining uniformity, the Apex Court has also suggested amendment to the provisions of Chapter XVII so that in all cases where there is conviction, there should be a consequential levy of fine of an amount sufficient to recover the cheque amount and interest thereon at a fixed rate of 9% per annum followed by award of such sum as compensation from the fine amount. This would lead to uniformity in compensation, avoid multiplicity of proceedings and achieve the object of Chapter XVII of the Act which is to increase the credibility of the instrument.” The matter was, however, left to Law Commission of India to consider by the Apex Court. 19. This would lead to uniformity in compensation, avoid multiplicity of proceedings and achieve the object of Chapter XVII of the Act which is to increase the credibility of the instrument.” The matter was, however, left to Law Commission of India to consider by the Apex Court. 19. In view of the above observations of the Apex Court it would be appropriate to grant as compensation, the cheque amount, together with interest @ 9 % per annum from the date of presentation of the cheque. Calculated thus, although the amount of compensation would be more than thirteen lakhs till the date of passing of the judgment by the trial court, I direct the revision petitioner to pay compensation of Rs. 13,00,000/- (Rupees Thirteen Lakhs) to the complainant/appellant. 20. With the above direction, the revision petition is dismissed and the appeal preferred by the appellant is allowed to the extent indicated above. Both the cases are disposed of at the stage of admission. 21. Send down the LCR. 22. The accused petitioner is directed to surrender before the trial Court within one month from today to serve out the sentence and to pay the compensation of Rs. 13,00,000/- (Rupees Thirteen Lakhs) as ordered.