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2017 DIGILAW 774 (CAL)

Dilip Kumar Majumdar v. Gautam Kumar Bera

2017-09-14

SIDDHARTHA CHATTOPADHYAY

body2017
JUDGMENT : 1. The petitioner challenges the impugned judgment dated 12th December, 2013 passed by Additional Sessions Judge, Fast Track 4th Court, Diamond Harbour in a criminal appeal being preferred challenging the judgment and order of conviction dated May 31, 2010 passed by the learned A.C.J.M., Diamond Harbour in complaint case No. 04 of 2007. 2. According to the petitioner, the complainant and his wife purchased 700 shares of Morgan Stanley Growth Fund in 1995 and shares certificates were duly issued in their favour. It has been alleged in complaint case that his wife was eager to dispose of the said shares and approached the accused for selling the shares because they did not have any Demat Account, which is necessary for sale and purchase of the shares. The accused was having a Demat Account. The complainant further stated that his wife put her signature on shares transfer form on good faith and handed over the same to the present petitioner. The accused informed the complainant and his wife that the sale proceeds of the share was Rs.25,000/- and after deduction the complainant is supposed to get Rs.25,100/-. The accused did not pay the same by cash but towards the discharge of his liabilities he had issued a cheque bearing No.259306 dated June 24, 2006. Since the cheque was dishonoured by the bank concerned, so after observing all legal formalities he has initiated a case under Section 138 of N.I. Act against the petitioner. 3. Learned Trial Court on appreciation of evidence found him guilty and convicted the present petitioner under Section 138 of N.I. Act and sentenced him to undergo rigorous imprisonment for two months and also sentenced to pay a fine of Rs.5,000/- in default rigorous imprisonment for one month and also awarded compensation of Rs.1 lakh in favour of the complainant. That finding of the learned Trial Court was challenged before the First Appellate Court. The said Court heard argument of both sides and on appreciation of evidence and after proper scrutinization of the record confirms the said finding of the learned Trial Court, but has modified the conviction by awarding Rs.50,000/- instead of Rs.1 lakh as compensation. Other parts of the sentence of the learned Trial Court remain undisturbed. 4. The said Court heard argument of both sides and on appreciation of evidence and after proper scrutinization of the record confirms the said finding of the learned Trial Court, but has modified the conviction by awarding Rs.50,000/- instead of Rs.1 lakh as compensation. Other parts of the sentence of the learned Trial Court remain undisturbed. 4. At the time of hearing, learned Counsel appearing on behalf of the petitioner vehemently argued that the findings of both the learned Courts below are unjustified and without any basis. According to him, the cheque was issued by him not in discharge of any debt. He further stated that sale proceeds of shares were given to the complainant and his wife, who had put their signature in the said certificate mentioning that they had received the dues. Both the Courts below overlooked this issue and as a result came to a wrong finding. He further submitted that it is the duty of the complainant to prove his case first i.e. there was any debt, which the accused petitioner was supposed to discharge. Only then the duty casts upon the accused to show that the cheque was issued as a security and not in terms of any debts or liabilities. In support of his such contention he has relied on a decision of reported in ‘Supreme Today’ in connection with Criminal Appeal No. 261 of 2013, and also an unreported decision in K.Subramani –vs.-K.Damodara Naidu in Criminal Appeal No. 2402 of 2014. He has also argued that this Court has every power or authority to appreciate the evidence, if it is found perverse. In support of his such contention he has referred to a decision rendered by the Hon’ble Apex Court in connection with Ved Prakash Gupta- vs.- Delton Cable India (P) Ltd., reported in 1984 AIR 914, Navinchandra Sakherchand Shah –vs.- Ahmedabad Co-operative Stores Ltd. reported in (1978) 0 GLR 108 , (1979) ILLJ 60 Guj, regarding what is debt or security. He has relied on a decision of this High Court in C.O. 4051 of 2012. As against this learned Counsel appearing on behalf of the opposite party relied on a decision of Hon’ble Apex Court in Parminder Singh –vs.-Gurpreet Singh, passed in Civil Appeal No. 3612 of 2009. 5. Let me consider the first limb of argument of the accused petitioner. As against this learned Counsel appearing on behalf of the opposite party relied on a decision of Hon’ble Apex Court in Parminder Singh –vs.-Gurpreet Singh, passed in Civil Appeal No. 3612 of 2009. 5. Let me consider the first limb of argument of the accused petitioner. That interpretation has to be considered along with the factual aspects of this case. The defence case as it appears to me from the evidence of the petitioner (D.W. 1) that he has accommodated a loan as prayed for by the complainant, and for which he has issued a cheque in favour of the complainant. On a certain date, the accused petitioner asked the complainant to come and at that date complainant acceded to his beckon. Thereafter the petitioner had issued the cheque. He also categorically taken a defence that at the relevant point of time one Banomali Mondal (D.W.2), was present. That Banomal Mondal told him that the complainant is in the habit of taking loan but never repaid. Relying on his (D.W.2) such statement he has intimated the bank manager to ‘stop payment’. Therefore, the defence of the accused petitioner is such that he never issued the cheque in relation to his debt to discharge his any liability and ultimately instructed for nonpayment on the basis of statement of Banomali Mondal (D.W.2). In this juncture evidence of D.W. 2 has to be placed under a lens. This P.W. 2 is an employee of the accused petitioner. In his evidence he stated that the accused had issued a cheque in favour of the complainant and he himself requested his master (D.W.1) not to accommodate such loan because the complainant usually does not repay the loan. In course of cross-examination, this D.W. 2 categorically stated he does not know the name of father of the complainant nor he could say the name of the school wherein the complainant works as a teacher. He even did not know whether till that day the said complainant was a teacher or not. He could not say from whom the complainant took loan in earlier occasions. He could not say who are the ‘many of his persons’. Therefore, if one scrutinizes his evidence meticulously in that case one would find that there is no substance in his evidence. He could not say from whom the complainant took loan in earlier occasions. He could not say who are the ‘many of his persons’. Therefore, if one scrutinizes his evidence meticulously in that case one would find that there is no substance in his evidence. Even he did not tell how he get himself acquainted with the complainant and from whom he came to know that the complainant used to take loan from many persons and never paid it. Therefore his evidence is not a creditworthy. Since he is an employee of the accused petitioner, so certainly he had made some embellishment and embroideries so that his master can save his skin from the net of law. D.W. 3 has stated that value of the shares, which were sold by the complainant and his wife in favour of the wife of the accused petitioner, was Rs.18,900/- and revenue was paid at Rs.95. If we consider this aspect that the cheque of Rs.25,100/- was issued as consideration of the said shares then why a cheque amounting to Rs.25,100/- was issued instead of Rs.18,900+95. This aspect has not been clarified by the accused petitioner. 6. On perusal of the decisions cited above the ratio is such that if the complainant reasonably discharges the burden that the payment was made towards a lawful debt in that case duty casts upon the accused petitioner to discharge the burden in terms of Sections 118 and 139 of the N.I. Act. Here the complainant had been able to show that the cheque was issued in discharge of a debt but the said cheque was bounced. Therefore, the accused petitioner has to discharge his liability. The burden of proof as per Sections 118 and 139 of the N.I. Act is upon the accused to show that the cheque had not been issued towards discharge of a legal debt but was issued by way of security or any other reason on account of some business transaction. The petitioner wanted to establish that value of the share was paid. The complainant who endorsed the same by putting his signature. That endorsement was for Rs.18,900/- dated 21.09.2005 but cheque was issued for Rs.25,100/- on 24.06.2006. There is no reasonable explanation as to why the cheque amount exceeds to the sale price of the shares as to why the cheque was issued after nine month. The complainant who endorsed the same by putting his signature. That endorsement was for Rs.18,900/- dated 21.09.2005 but cheque was issued for Rs.25,100/- on 24.06.2006. There is no reasonable explanation as to why the cheque amount exceeds to the sale price of the shares as to why the cheque was issued after nine month. The question of granting loan has been disbelieved by the learned Trial Court as well as by the First Appellate Court on proper appreciation of evidence. Usually High Court sitting in a criminal revisional jurisdiction does not like to re-appreciate the evidence unless there is a travesty of justice. Yet this Court endeavoured the same and found that both the Courts below have come to a correct conclusion. The opposite party has relied on an unreported decision Parminder Singh –vs.- Gurpreet Singh (Civil Appeal No. 3612 of 2009) and concluded that the findings of both the Courts below are binding not only on High Court but also on the Supreme Court. I have gone through the judgment although there are catena of decisions that in case of travesty of justice, High Court can look to the evidence. 7. Having regard to the facts and circumstances of this case and on appreciation of evidence as well as the documents which are marked exhibits, I am of the view that the impugned judgment passed by the Additional Sessions Judge, Fast Track 4th Court Diamond Harbour does not call for any interference. Bouncing of a ball is a fun for a child but bouncing of a cheque is not a fun rather it invites a person to go to prison. Accordingly, the Criminal Revisional Application is dismissed. 8. Let a copy of this judgment and the L.C.R. be sent to the learned Court below for information and taking necessary action in accordance with law. 9. Urgent certified photocopy of this Judgment and order, if applied for, be supplied to the parties upon compliance with all requisite formalities.