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2016 DIGILAW 731 (CAL)

Ashis Ghosh v. Ajay Kumar Ghosh

2016-09-16

TAPASH MOOKHERJEE

body2016
ORDER : Tapash Mookherjee, J. The present Revisional Application is directed against the judgment and order, dated 19.08.2008 passed by the learned Additional Sessions Judge, 2nd Court, Barasat, North 24 Parganas, in Criminal Appeal No. 7/2006 whereby the judgment and order dated 30.06.1996 passed by the learned Judicial Magistrate, 1st Class, 1st Court, North 24 Parganas at Barasat in C. Case No. 903/2003 was affirmed. 2. The facts leading to the present Revisional Application, in short, may be summarised as follows:- 3. One Ashis Ghosh and his wife Ali Ghosh hereinafter described as the petitioners, took a loan of Rs. 70,000.00 (rupees seventy thousand only) from one Ajoy Kumar Ghosh hereinafter described as the Opposite Party and to repay the loan the Petitioners issued a cheque for the said amount on 04.04.2003 in favour of the Opposite Party. But the said cheque was returned unpaid on presentation, on the ground of insufficiency of fund in the account. The Opposite Party thereafter served demand notice upon the Petitioners demanding the money. But the Petitioners did not make payment in response to the demand notice. Hence, the Opposite Party filed a complaint under Section 138 of the Negotiable Instrument Act (in short, N.I. Act) in the Court of learned Chief Judicial Magistrate, North 24 Parganas at Barasat. The said case was registered as case No. C.-903/2003 and transferred to the Court of Judicial Magistrate, 1st Court at Barasat for disposal. The petitioners appeared and contested the case. Evidence was recorded and considering the evidence on record learned Magistrate found the petitioners guilty of the offence under Section 138 of the N. I. Act and sentenced them to suffer Simple Imprisonment for one year or to pay fine of Rs. 1,40,000.00 (rupees one lakh forty thousand only), i.e., the double of the amount of the cheque. Being aggrieved by and dissatisfied with such judgment and order of sentence the petitioners preferred an appeal in the Court of the learned Sessions Judge, North 24 Parganas at Barasat, registered as Criminal Appeal No. 07/2006. The said appeal was transferred to the Court of learned Additional District Judge, 2nd Fast Track Court at Barasat for disposal. The Opposite Party contested the appeal and after hearing both the parties, the Appellate Court dismissed the appeal and directed the petitioners to surrender before the Trial Court to pay the fine of Rs. The said appeal was transferred to the Court of learned Additional District Judge, 2nd Fast Track Court at Barasat for disposal. The Opposite Party contested the appeal and after hearing both the parties, the Appellate Court dismissed the appeal and directed the petitioners to surrender before the Trial Court to pay the fine of Rs. 1,40,000.00 (rupees one lakh forty thousand only) or to suffer Simple Imprisonment for one year. Being aggrieved by such judgment also, the accused persons in the case preferred the present Revisional Application. 4. Mr. Sumanta Chakraborty, learned Advocate appearing for the Petitioners submitted that two demand notices were sent to the Petitioners which was not permissible in law and that the cheque in question issued by the Petitioners in favour of the Opposite Party in this case were post-dated cheque which is not also valid in law. He further submitted that the Trial Court as well as, the Appellate Court wrongly held the Petitions of the Petitioners offering to pay back the amount of the cheque, to be the admission of their guilt by the Petitioners and erroneously convicted the Petitioners on the basis of such offers. It was also his contention that the Opposite Party had no money-lending licence and hence the loan allegedly given by the Opposite Party to the Petitioners is not recoverable in law by the Opposite Party. 5. On the other hand, Mr. Sujoy Chakraborty, learned Advocate appearing for the Opposite Party submitted that the Petitioners have two addresses, one being their permanent address and the other is their temporary address and for such reasons demand notice was sent in both the addresses. He further submitted that issuance of a post-dated cheque is not prohibited in law. It was his further contention that since the Petitioners on different occasions during trial as well as, appeal filed petitions and thereby acknowledged their debt and agreed to pay back the money in question, hence the Petitioners are estopped from denying their liability. 6. In the complaint under Section 138 of the N. I. Act, the temporary address as well as, the permanent address of the Petitioners have been mentioned. So, the demand notice was sent in both those two addresses and the Petitioner No. 1 received one of those two notices and the Petitioner No. 2 refused to receive the notices. 6. In the complaint under Section 138 of the N. I. Act, the temporary address as well as, the permanent address of the Petitioners have been mentioned. So, the demand notice was sent in both those two addresses and the Petitioner No. 1 received one of those two notices and the Petitioner No. 2 refused to receive the notices. There is nothing wrong in law to send the same demand notice to the Petitioners in both their addresses. Mr. Chakraborty, learned Advocate appearing for the Petitioners failed to show any law to suggest that a post-dated cheque is an invalid cheque. It should be also mentioned here that none of the aforesaid points had been taken up by the Petitioners in the Courts below. 7. Exhibit - A is an agreement executed by the Petitioners on 14.03.2003 by which the Petitioners have acknowledged the fact that they have received an amount of Rs. 70,000.00 (Rupees seventy thousand only) in cash, from the Opposite Party, on that very day promising to pay back the money by 04.04.2003. There is no interest clause in the agreement. The Opposite Party claims that he has paid the money to the Petitioners out of his sympathy and friendship towards the Petitioners. It is not a case of the Petitioners that the Opposite Party entered into such agreement with any other person as well. So, it is not a loan transaction. Hence, whether the Opposite Party has any money lending licence, or not, is immaterial in the case. Learned Advocate for the Petitioners tried to make out a case that in view of the agreement, the cheque in question is a negotiable instrument in which Section 138 of the N. I. Act has no application. Such a contention is devoid of any legal basis. 8. In fact, the Petitioners have not disputed in any way the fact of their taking money from the Opposite Party and issuing the cheque in question for repayment of it. 9. Admittedly on 25.06.2004 the Petitioners submitted an application in the Trial Court and thereby admitted all the aforesaid facts and prayed for two months' time to return the money. However, that petition was not allowed or rejected. Thereafter again on 05.10.2004 the Petitioners by a petition prayed for time for payment of the amount in the cheque. 9. Admittedly on 25.06.2004 the Petitioners submitted an application in the Trial Court and thereby admitted all the aforesaid facts and prayed for two months' time to return the money. However, that petition was not allowed or rejected. Thereafter again on 05.10.2004 the Petitioners by a petition prayed for time for payment of the amount in the cheque. This time the Trial Court allowed the prayer of the Petitioners and fixed the case on the next date for payment, in default, evidence. Thereafter during the hearing of the appeal, the Petitioners again expressed their willingness to pay back the amount of the cheque in question to the Opposite Party. 10. It is true that the willingness of the Petitioners to pay back the money repeatedly expressed in the Trial Court as well as, in the Appellate Court may not be termed as 'judicial confession of guilt' in strict sense of the term, but those can be definitely considered as the Petitioners' voluntary admission of the facts necessary to constitute the offence under Section 138 of the N. I. Act. Needless to say that after such admissions the Petitioners cannot have any justified point in their defence, in the case. In this contest I am compelled to take the view that the Petitioners have indulged in playing hide and seek with the Opposite Party as well as with the Courts, which should be condemned. 11. It would be wrong to say that the Trial Court convicted the Petitioners just on the basis of such admissions only. The Trial Court has considered the evidence on record also while convicting the Petitioners in the case. Similarly the Appellate Court also considered the merit of the case on the basis of the evidence on record. 12. There are concurrent findings of two Courts on material facts, against the Petitioners. None of those findings or decisions is perverse or against the provisions of law in the matter. So, there is hardly any scope to interfere with them. 13. Mr. Chakraborty, learned Advocate appearing for the Petitioners submitted on the point of sentence that both the Petitioners are aged persons and one of them is suffering from serious ailments and hence the sentence passed in the case is too harsh. So, the sentence should be reduced substantially. On the other hand Mr. 13. Mr. Chakraborty, learned Advocate appearing for the Petitioners submitted on the point of sentence that both the Petitioners are aged persons and one of them is suffering from serious ailments and hence the sentence passed in the case is too harsh. So, the sentence should be reduced substantially. On the other hand Mr. Chakraborty, learned Advocate appearing for the Opposite Party contended that the Petitioners took the loan for their business purpose in the year 2003 and they have not intentionally repaid the amount because of which the Opposite Party has already suffered huge financial losses and hence the sentence should not be reduced. 14. The Petitioners took the loan of Rs. 70.000.00 (rupees seventy thousand only) from the Opposite Party with promise to repay within a few months. But the Petitioners did not repay the loan amount till date. Moreover, the Petitioners during the trial as well as hearing of the first appeal expressed their willingness to repay the cheque amount, but instead of doing so they continued fighting the litigation. Such conduct of the Petitioners is not justified or fair on any ground. If the Bank interest on the amount of Rs. 70.000.00 (rupees seventy thousand only) is added from the year 2003 with the principal amount then the due would be a huge amount from which the Opposite Party is deprived of for a very long period. So, I find no reason to reduce the sentence or fine. However, considering the age and the condition of health of the Petitioners as informed by the learned Advocate I am inclined to reduce the period of imprisonment on humanitarian ground. 15. An anomaly is apparent in the order passed by the Appellate Court, the operating part in the order of the learned Magistrate is as follows: " that the accused persons are found guilty of the offence under Section 138 of the N. I. Act. Hence, convicted and sentenced to suffer Simple Imprisonment for the period of one year or with fine twice the amount of cheque, i.e. Rs. 1,40,000.00 (rupees one lakh forty thousand only)." The Appellate Court dismissed the appeal and affirmed the judgment and order of the Trial Court. Hence, convicted and sentenced to suffer Simple Imprisonment for the period of one year or with fine twice the amount of cheque, i.e. Rs. 1,40,000.00 (rupees one lakh forty thousand only)." The Appellate Court dismissed the appeal and affirmed the judgment and order of the Trial Court. The concluding part of the ordering portion in the judgment of the Appellate Court is as follows: "The Appellants/accused persons are hereby directed to surrender before the Court below within one month and to pay the fine twice the amount of cheque, i. e., Rs. 1,40,000.00 (rupees one lakh forty thousand only) and to suffer Simple Imprisonment for the period of one year." No reason has been recorded by the Appellate Court in regard to the change of the sentence. Be that as it may, the sentence passed in the case requires to be modified in view of the decision of the Hon'ble Supreme Court reported in 2001 CRI. L. J. 950 (Supreme Court), Pankajbhai Nagjibhai Patel v. State of Gujarat and another. And following the principles laid down in the aforesaid judgment the sentence in this case is modified in the following way. The Petitioners/convicted persons are sentenced to suffer Simple Imprisonment for one month and to pay a sum of Rs. 1,40,000.00 (rupees one lakh forty thousand only) to the Opposite Party as compensation under Section 357 (3) of the Code of Criminal Procedure. In default, to suffer from Simple Imprisonment for six months more. 16. The Revisional Application being C.R.R. No.4130 of 2008 is disposed of with modification of the sentence only as mentioned above. 17. The Petitioners are directed to surrender before the Trial Court within two months from this date to serve out the sentence of imprisonment and to pay the compensation amount, and if they fail to comply with this order the Trial Court will take appropriate steps against them. The Petitioners are given the liberty to withdraw the sum of Rs. 40,000.00 (rupees forty thousand only) deposited by them in the Court below in compliance with the order dated 02.12.2008 passed by this Court in this Revisional Application. 18. Let the lower Court records be sent back to the Courts below along with a copy of this judgment and order at once. 19. Urgent certified photocopy of this judgment, if applied for, be supplied to the learned Counsels for the parties upon compliance of all formalities.