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2016 DIGILAW 913 (CAL)

Sujit Kumar Pal v. State of West Bengal

2016-11-23

INDRAJIT CHATTERJEE

body2016
JUDGMENT : Indrajit Chatterjee, J. 1. This Court is hearing this appeal as against the judgement and order dated 28-08-2007 passed by the learned Additional Sessions Judge, Barrackpore, North 24-Parganas, in Criminal Appeal No. 2 of 2007 vide which the order of conviction as passed by the learned Judicial Magistrate, 5th Court, Barrackpore, North 24-Parganas, on 26.04.2007 as passed in Complaint Case No.583 of 2003 was reversed from an order of conviction to an order of acquittal. 2. It may be mentioned that the learned Trial court vide the impugned judgment convicted the present accused/respondent in respect of the charge punishable under Section 138 of the Negotiable Instruments Act, 1881 (hereinafter called as the Act of 1881) and sentenced him to suffer rigorous imprisonment for one year and directed to pay fine of Rs.2,60,000/- (rupees two lakhs sixty thousand) which will go to the complainant and in default the said convict was directed to undergo further R.I for one year. 3. The fact relevant for the purpose of adjudication of this appeal can be stated in brief thus: That the complainant was a Section Engineer at Kanchrapara Railway Workshop and the accused was his junior. During their days of service, the present opposite party/accused expressed his desire to sell out his premises and the complainant/appellant intended to purchase the same. There was an agreement for sale dated 30th Chaitra, 1409 B.S. and the price for the said land was fixed Rs.4,00,000/- and the complainant paid an advance of Rs.1,00,000/-towards the earnest money and the balance was scheduled to be paid within six months at the time of registration. After the execution of the said agreement, the accused failed to hand over his title deeds despite request by the complainant. Thus, the agreement to sale failed and the complainant demanded that the accused should pay him back the earnest money along with interest and damages thereof. In view of such request, the accused on 22-07-2003 gave the complainant one cheque (Ext.2) covering an amount of Rs.1,30,000/- bearing No. 142721 dated 22-07-2003 drawn on UCO Bank, Kanchrapara Branch, with a request to place the cheque for encashment on or after 01-09-2003. The cheque was deposited by the complainant/appellant to his banker, i.e. State of India, Kanchrapara Brach on 01-09-2003 this after four and half month of payment of the advance. The cheque was deposited by the complainant/appellant to his banker, i.e. State of India, Kanchrapara Brach on 01-09-2003 this after four and half month of payment of the advance. The said cheque was dishonoured with the remarks ‘insufficient founds’ and as such, one legal notice was issued under the provisions of the Act of 1881, which was duly accepted by the opposite party/accused and he was replied the same which was marked as Exbt. 5 before the learned trial court wherein his Advocate informed this appellant/ complainant that no such cheque was issued at all and as such, the accused/opposite party asked the complainant/appellant not to proceed with this matter. 4. However, the complainant filed one complaint before the learned Sub-Divisional Judicial Magistrate, Barrackpore, which was registered as Complaint Case No.583 of 2003 and later on, the case was transferred to the court of Judicial Magistrate, 5th Court, Barrackpore and when the accused examined himself as DW-1 he deposed that the instructed the bank to make stop payment from his account even though he built up a story as witness that the said cheque book was lost and he lodged one G.D. Entry before the Naihati G.R.P.S, being G.D. Entry No.988 dated 25-07-2003, and the said G.D. Entry was produced by the D.W.-2 which was marked as Exbt.-A. In 313 Cr.P.C., the accused/opposite party stood to his claim that no such cheque was issued to the complainant. When the complainant (PW-1) was being examined it was suggested by the defence that the cheque leaf in question was taken by the complainant under influence of liquor and it was also suggested that the execution of the agreement Exhibit-1 was under influence of liquor and the parties used to consume liquor together. 5. It may also be noted that on behalf of the present appellant/complainant one employee of UCO Bank of Kanchrapara Branch was examined as P.W.-2 who specifically deposed that this accused being one customer of that branch, the signature of the accused was known to him and he duly identified the said signature of the opposite party/accused. This witness also deposed that the said cheque was dishonoured on the ground that there was not sufficient fund to pay the dues. Nothing came out from his mouth that actually, this accused/complainant gave any instruction to the said banker to make stop payment. 6. Mr. This witness also deposed that the said cheque was dishonoured on the ground that there was not sufficient fund to pay the dues. Nothing came out from his mouth that actually, this accused/complainant gave any instruction to the said banker to make stop payment. 6. Mr. Chowdhury, learned Advocate appearing on behalf of the appellant, took me to the judgement of the First Appellate Court and submitted that the learned Appellate Court disposed of the appeal on a wrong footing. He took to the copy of the judgment (running page No.23) wherein the learned First Appellate Court reversed the judgment of the learned trial court mainly on the ground that the complainant appellant made necessary insertion in the cheque to his advantage by inserting inflated amount. The First Appellate Court also did not accept charging of huge interest to the tune of Rs.30,000/- for the principal amount of Rs.1,00,000/- for a period of three months only. He further submitted that this period of three months was also wrongly calculated. He submitted that in the said judgment the court however accepted the finding of the learned trial court that the cheque was signed by the accused/respondent but the court held that the body of the cheque was filled in by the complainant including the name of the payee and also the amount (both in words and in figures) including the date of the cheque by comparing the hand writing. He further submitted that no prayer was made by the accused praying for comparing of the hand writing on the body of the cheque and the First Appellate Court practically took the burden to compare the said hand writing like the name “Sujit”. He further submitted that the accused took only a positive plea that the said cheque was not issued by him at all however, the trial court and also the First Appellate Court held that he duly signed the cheque. 7. Mr. He further submitted that the accused took only a positive plea that the said cheque was not issued by him at all however, the trial court and also the First Appellate Court held that he duly signed the cheque. 7. Mr. Chowdhury has relied upon a decision of the Delhi High Court as reported in 2009(1) ALD (Cri) 13 (Ravi Chopra –vs- State and Anr.) wherein the Single Judge of that Court held that the fact that CFSL report which shows the hand-writing, the ink and the time of filing the material particulars is different from that of the signature, that by itself will not go to prove that the accused has discharged his liability and the order of the learned Trial Court was affirmed. 8. He also cited a decision of Kerala High Court as reported in 2003(3) KLT 721 (Lillykutty –vs- Lawrance) wherein the Single Judge of that High Court also took similar view and proceeded to say that burden is entirely on the drawer of the cheque to establish the date, amount and payees name written by somebody else without his knowledge and consent and the drawer did not discharge that burden. 9. Learned Counsel further submitted that the learned First Appellate Court duly relied on the decision of the Apex Court 2004 C CR L R 113 (SC) that presumption of a cheque under Section 139 of the Act stands in favour of the instrument being duly drawn by the drawer unless cogent evidence is adduced to rebut the presumption. He took me to the agreement for sale marked as Exbt. 1 before the learned trial court to convince this Court that the cheque was issued to meet up the existing liability and that earnest money of Rs.1,00,000/- was paid on the date of the agreement. On my asking the learned counsel submitted that the rate of interest was not mentioned in the agreement. 10. 1 before the learned trial court to convince this Court that the cheque was issued to meet up the existing liability and that earnest money of Rs.1,00,000/- was paid on the date of the agreement. On my asking the learned counsel submitted that the rate of interest was not mentioned in the agreement. 10. He further submitted that even though DW-1 deposed that he instructed the bank to make stop payment but no document was produced to establish his claim and that PW-2 who came to depose on behalf of the United Commercial Bank that is the banker of the accused did not say anything regarding the instruction received from the accused to stop payment and thus he submitted that there is no reason to believe the different stories made to defeat the claim of the present appellant/complainant. 11. Mr. Banerjee the learned advocate appearing on behalf of the opposite party submitted by taking me to the agreement (Exbt. 1) to show that the agreement was effected either on 13th or 14th April, 2003, whereas the stamp paper was purchased as back as on 07.02.2003 and as such this agreement should not be believed. He further submitted that the said agreement was not duly marked as exhibit being hit by Section 59 and 67 of the Indian Evidence Act. He also contended that the agreement gave six months’ time to fulfill the contract but no such time was given to this opposite party and the case was filed before that. He further contended that if the agreement goes then it cannot be said that the said cheque was issued to meet up the existing liabilities and as such Section 138 of the N.I Act cannot have any application. 12. He cited the decision of the Apex Court (2013) 3 Supreme Court Cases 86 (Vijay Vs. Laxman & Anr.) to convince this court that even though there is a presumption under Sections 118 and 139 of the Act of 1881 but the said presumption is rebuttable one and this opposite party has duly rebutted the presumption through the evidence of DWs 1 and 2 and the positive assertion made by him as DW 1 that this cheque was not at all issued by him. He further contended by taking me to the examination sheet under Section 313 Cr.P.C that this accused/opposite party made up a positive case that there was no agreement between the parties and that no such cheque was issued. 13. In reply it was submitted by the learned Advocate appearing on behalf of the appellant/complainant that the decision of the Apex Court as passed in Vijay (supra) will not apply on facts and circumstances of this case as in that case before the floor of the Apex Court the cheque was presented not on the date but on other date. He submitted to consider the presumption of Sections 118 and 139 of the N.I Act which is in favour of the holder of the cheque. 14. On scrutiny of the judgment of the Apex Court as cited by Mr. Banerjee, this court is satisfied that factual matrix of the case before the floor of the Apex Court cannot match with the present case before this Court as from paragraph no.13 of the judgment it will be evident that the dispute between the parties was regarding presentation of a cheque not on the stipulated date. The fact before this Court is totally different from the fact before the Apex Court. 15. The argument Mr. Banerjee that six months’ stipulated time was not given to the accused/opposite party to fulfill the contract is belied by the fact that the cheque was issued on 22.07.2003 and that it was presented to the banker of the complainant only on 01.09.2003 and this shows that there must be some internal agreement between the parties not to place the cheque earlier and as such the agreement dated 13th of Chaitra, 2009 BS was abandoned earlier by the parties. 16. (This court is not unmindful of the decision of this Court as reported in (2015) 1 CAL LT 626 (HC) Nita Kanoi @ Bansal Vs. M/S Paridhi & Anr. 16. (This court is not unmindful of the decision of this Court as reported in (2015) 1 CAL LT 626 (HC) Nita Kanoi @ Bansal Vs. M/S Paridhi & Anr. I have taken into consideration the agreement advanced by the parties wherein a coordinate Bench took up a similar matter where the signature in the cheque was not disputed by the drawer of the cheque but he claimed that the name of the payee and the amount was not filled in by him and on that fact the Hon’ble Single Judge of this Court took recourse to Section 20 of the Act of 1881 and decided that as per the said provision 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 facie 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 the amount covered by the stamp. 17. The Hon’ble Single Judge in Paragraph No.8 held that the provisions of Section 20 further provides the person so signing shall be liable upon such instrument, in the capacity in which he signs the same, to any holder in due course for such amount, provided that no person other than a holder in due course shall recover from the person delivering the instrument anything in excess of the amount intended by him to be paid thereunder. 18. In Paragraph No.9 of the said judgment the court observed “……..On a plain reading of the aforesaid provisions, it is abundantly clear even if an incomplete negotiable instrument, signed by the drawer delivers to anyone, it authorizes the holder there of to make or complete the same as the case may be and also the person so signing shall be liable upon such instrument in capacity he singed the same to any holder thereof in due course for payment of such amount. Therefore, even if a bill of exchange which includes a cheque if delivers to any person signed by the drawer, no payment against such cheque can be denied on the plea the same was delivered to the person was partially blank. Therefore, even if a bill of exchange which includes a cheque if delivers to any person signed by the drawer, no payment against such cheque can be denied on the plea the same was delivered to the person was partially blank. Since the signature in the cheque has not been disputed there is no need for verification of the handwriting by which the name of the payee and the amount has been filled up..…”. (emphasis supplied by me) The decisions of the other High Courts have a persuasive value but the court is bound by the decision a coordinate bench of its own Court unless the court finds any sufficient reason to differ from the same. 19. It is true that in the case before the floor of the trial court the accused denied that he ever issued such cheque but the learned first appellate court came to the conclusion that the said cheque was duly signed by the drawer accused but he did not fill in the body of the cheque. The learned first appellate court even made necessary comparison of the writing of the cheque with the signature of the complainant and on close scrutiny it came to the conclusion by taking recourse to the word “Sujit” that the cheque was filled in by the complainant himself. The said court however while doing so noted in the judgment that the signature of the appellant in the cheque is there in Bengali but unfortunately the signature appearing on the cheque is in English. This comparison of the writing of the cheque is in violation of the judgment passed in Nita Kanoi @ Bansal (supra) wherein as I have stated earlier the court held that there was no need for verification of the hand writing by which the name of the payee and the amount has been filled up. When the first appellate court held that the signature on the cheque was of the accused he had no authority to compare the hand writing of the body of the cheque. 20. The Apex Court also has time and again directed that the court should not usurp the role of a hand writing expert even though it is said that Court is expert of all experts and such duty must be left to the expert. 20. The Apex Court also has time and again directed that the court should not usurp the role of a hand writing expert even though it is said that Court is expert of all experts and such duty must be left to the expert. On the same point this court (which myself presided) decided one criminal appeal being CRA No.605 of 2012 (Dr. Asim Kumar Chatterjee vs. State of West Bengal & Ors.) decided on 17.09.2015 wherein this court observed “Much was argued regarding the legal position as to the presumption in favour of the holder of a cheque. It is now the admitted position that mere signing of a cheque and handing it over to the other side is one good execution of negotiable instrument as reiterated by this court in its decision in Nita Kanoi @ Bansal (Supra). 21. It is also a settled position of law that the presumption under Section 139 of the N. I. Act postulates that whenever a cheque or negotiable instrument is issued in favour of the other side, then the court can presume that it was issued in discharge of existing liability. It is true that there is no presumption as to the existence of debt or liability and it is to be proved by the complainant before the floor of the court.” 22. I have gone through the ‘bainapatra’ it was executed on 30th chaitra, 1409 BS corresponding to 14th of April, 2003 it is true that there is no signature of the complainant on the said ‘bainapatra’ even though it was a bipartite agreement. Regarding the marking of the said document as exhibit nothing was agitated before the trial court or before the first appellate court. When the document was marked as exhibit no objection was raised and as such this plea of the learned lawyer of the opposite party that its execution was not proved as the attesting witnesses were not examined or the scribe was not examined. The trend of cross examination shows that the defence, before the trial court fumbled in fixing the defence. This court cannot shut its eyes to the suggestion given by the defence, when complainant was being examined as PW-1 that the said ‘bainapatra’ was prepared when both the complainant and the opposite party were under a drunken condition. The trend of cross examination shows that the defence, before the trial court fumbled in fixing the defence. This court cannot shut its eyes to the suggestion given by the defence, when complainant was being examined as PW-1 that the said ‘bainapatra’ was prepared when both the complainant and the opposite party were under a drunken condition. Suggestion was also put that this complainant took the said cheque from the house of the accused while the complainant was in a drunken condition. Thus it appears that the accused/opposite party blew hot and cold and could not fix up a fixed defence, when PW-1 was being examined. It may further be noted that the cheque was not a security cheque and there was no business transaction between the parties. The cheque as per the complainant was issued as advance for the consideration money. 23. Be that as it may, the court should not lose sight of the oral evidence of PW-1, that is the complainant/appellant, who candidly deposed that he entered into one agreement of sale with the opposite party and Rs.4,00,000/- was fixed as consideration money and out of that Rs.1,00,000/- was paid to the accused opposite party at the time of the execution of that agreement but somehow that agreement lapsed and as per PW-1 the disputed cheque was issued by the accused opposite party on the date of the agreement as advance. The accused only denied the entire story and even did not say on oath as DW-1 that he did not put any signature on the said cheque exhibit 2. 24. Now, the question comes whether the cheque was rightly issued or not. This court is not unmindful of the fact that the cheque is dated 22.07.2003 and it was presented on 01.09.2003 and that must be as per mutual understanding. The G.D entry was lodged on 25.07.2003 at 10.20 hours. The question now is whether the filing of the GD entry (Exbt A) to the effect that when this accused/opposite party was travelling in a train he lost including other things the cheque book no. 2360/080 can establish the fact that this particular cheque No.142721 was lost on that particular date. Unfortunately for the present opposite party no cheque number was disclosed in that GD entry. It is difficult to co-relate this cheque leaf vis-à-vis the cheque book No.2360-080. 2360/080 can establish the fact that this particular cheque No.142721 was lost on that particular date. Unfortunately for the present opposite party no cheque number was disclosed in that GD entry. It is difficult to co-relate this cheque leaf vis-à-vis the cheque book No.2360-080. On scrutiny of the GD entry I can say further that in the GD entry no name of the bank was disclosed thus according to me this GD entry was lodged by the private opposite party in a hurry just to make out a case in future to defeat any subsequent claim. But, that is not enough to disprove the entire circumstance. 25. This court is not unmindful of the submission made by Mr. Chowdhury appearing on behalf of the appellant by taking me to the evidence of PW-2 that nothing was even suggested by this opposite party/accused that he instructed his banker not to give effect to the cheque or in other words he instructed to make ‘stop payment’ on the ground that the said cheque leaf was lost. This non assertion will also prove that the story of theft as noted in the G.D Entry was just to defraud his creditor. 26. The learned first appellate court came to the conclusion that the said cheque was at least signed by the accused. Considering the presumption of Sections 118 and 139 of the Act of 1881 this court is satisfied that the cheque was issued in discharge of the liability on the facts before the floor of this court. The decision of this court as passed in Nita Kanoi @ Bansal (supra) will squarely apply in this case. The worry of the first appellate court that the rate of interest was fixed to the tune of rupees thirty thousand was not an issue before the trial court or before that court. Nothing was argued before the trial court or before the appellate court regarding the levy of high interest but the learned first appellate court took up a third case that the interest amount was high whereas the only defence was that the cheque was not at all issued by the accused. 27. Nothing was argued before the trial court or before the appellate court regarding the levy of high interest but the learned first appellate court took up a third case that the interest amount was high whereas the only defence was that the cheque was not at all issued by the accused. 27. Thus this court on scrutiny of the evidence on record both oral and documentary, considering the judgment of the trial court and the first appellate court and also the agreement advanced is satisfied that the approach of the first appellate court to reverse the order of conviction was not in conformity with the legal position as decided by this court in Nita Kanoi @ Bansal (supra). This Court is not willing to answer the point as to whether the interest or damages claimed was usurious as it was not a point either before the trial court or before the first appellate court. 28. In such circumstances the order of the first appellate court is set aside. The appeal stands allowed. The finding of guilt of the trial court is restored. But, as regards the substantive sentence imposed by the learned trial court this court is of the opinion that the substantive sentence of one year rigorous imprisonment is too much and it is reduced to rigorous imprisonment for three months. 29. The fine amount of Rs.2,60,000/- (two lakh sixty thousand) be converted as compensation under Section 357 (3) of the Code Of Criminal Procedure, 1973 and in default of such payment the opposite party accused must serve rigorous imprisonment for one year. 30. The accused opposite party is directed to make such payment of Rs.2,60,000/- (two lakh sixty thousand) by way of Demand Draft in the name of the appellant before the learned trial court within one month from this day and must surrender before the learned trial court to serve out the substantive sentence of imprisonment for three months. Failure to comply with the order will entitle the trial court to issue warrant of arrest against this accused opposite party. 31. Office is directed to send a copy of this order to the learned trial court and also to the learned first appellate court along with the respective lower court records by special messenger for necessary entry and compliance. The special messenger costs be deposited by the appellant within three days from today. 32. 31. Office is directed to send a copy of this order to the learned trial court and also to the learned first appellate court along with the respective lower court records by special messenger for necessary entry and compliance. The special messenger costs be deposited by the appellant within three days from today. 32. Certified copy of this judgment, if applied for, be given to the parties on payment of usual fees.