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2018 DIGILAW 150 (CAL)

Sanjib Chowdhury v. Nishikanta Mondal

2018-01-19

SIDDHARTHA CHATTOPADHYAY

body2018
JUDGMENT : SIDDHARTHA CHATTOPADHYAY, J. Being unsuccessful in two successive occasions before the learned Trial Court, the appellant/complainant has knocked at the door of this Court for his redress. According to the appellant, learned Trial Court failed to account the evidence of PW 4 and DW 2 in its proper perspectives. Mainly the case of the complainant/appellant before this Court is such that the learned Trial Court lost sight of what is credit bills and so, came to the finding that the respondent had sufficient amount in the concerned bank. Accordingly, he has prayed for setting aside the last impugned judgement of the learned Trial Court and to convict the respondent. 2. The case of the respondent before this Court is such that learned Trial Court had considered all the evidences in its proper perspective and after being remanded by the Hon'ble Court, the learned Trial Court has considered the same and also came to some finding assigning reasons therein. He accordingly prayed for dismissal of this appeal. 3. Sieving out unnecessary details, the prosecution's case in a capsulated form is such that the accused/respondent and the complainant/appellant had business transaction for a pretty long time. The accused/respondent used to purchase certain quantity of articles from the complainant in the month of April 2004 to December 2004 on credit after observing all formalities. The respondent paid a very nominal amount by way of instalments from time to time, but at the end of December 2004 the balance became Rs. 3,98,725/- which was due to the complainant and was supposed to be paid by the appellant/accused. After a long persuasion, however, the respondent issued ten post dated cheques bearing No. 532262 to 532271 from 07.02.2005 to 11.04.2005 of various denominations with a view to settling the dues. He also requested the complainant to deposit the cheques in the first week of February, 2005. But, thereafter he has requested the complainant/appellant not to deposit the same for a period of three months. Now the dispute cropped up when the complainant/appellant had published an advertisement in the local newspaper ‘The Daily Telegram’ on 17.04.2005, which contained that the aforesaid cheques had been lost between Gurudwara Lane and Allahabad Bank, Port Blair. It was also stated in the notice that the accused/respondent instructed the bank to stop payment in respect of the aforesaid cheques. Now the dispute cropped up when the complainant/appellant had published an advertisement in the local newspaper ‘The Daily Telegram’ on 17.04.2005, which contained that the aforesaid cheques had been lost between Gurudwara Lane and Allahabad Bank, Port Blair. It was also stated in the notice that the accused/respondent instructed the bank to stop payment in respect of the aforesaid cheques. After noticing the said advertisement, the complainant/appellant considered the same as a trick to frustrate his claim and so he also published a notice on 21.04.2005 denying the contents of the notice published by the accused/respondents. Thereafter he had sent a notice through his lawyer and subsequently presented the ten post dated cheques, but those were bounced on the ground ‘payment stopped by the drawer’. After observing legal formalities, he had instituted the case before the learned Court below. 4. It appears from the impugned judgement that the learned Trial Court had recorded evidence of the complainant and his witnesses along with the evidence of the accused/respondent and his witnesses and thereafter made a threadbare discussion and considering the every nitty-gritty of the case, had dismissed the allegation of the complainant and acquitted the accused/respondent. 5. It is pertinent to mention that initially the same Court has also passed a judgement giving clean-chit to the accused/respondent. The complainant/appellant carried an appeal before a Coordinate Bench of this Court and the said Coordinate Bench was pleased to remand the matter before the learned Trial Court with a direction to consider the evidence of the DW 2 on merit and to pass a reasoned order. 6. On the basis of such order of the Coordinate Bench, the complaint case has been given a rebirth. 7. At the time of hearing the argument of learned counsel appearing on behalf of the complainant/appellant, triggered at the issue of the ignorance of the learned Trial Court so far as balance of the security cheque account maintained by the bank concerned. According to him, PW 2, the Branch Manager of the concerned Bank has deposed before the learned Trial Court and contended that credit limit given to the accused/respondent was to the tune of Rs. 4,48,000 and in spite of that he had made some payment and as a result, the entire credit limit has been exhausted and due became about Rs. 4,49,000. Actually this was not the balance to the credit of the accused/respondent. 4,48,000 and in spite of that he had made some payment and as a result, the entire credit limit has been exhausted and due became about Rs. 4,49,000. Actually this was not the balance to the credit of the accused/respondent. It is a negative balance which the learned Trial Court failed to consider. Therefore the argument advanced by the learned counsel appearing on behalf of the appellant is quite justified. 8. Learned counsel appearing on behalf of the respondent contended that to substantiate the claim the duty of the appellant was to show whether there was any legally enforceable debt. According to him, the bills raised by the complainant/appellant had been paid by him time to time which has been elaborately discussed by the learned Trial Court in its finding. By referring Exhibit 11 to Exhibit 29 he contended that those amounts were paid and credit bills have to be checked along with Exhibit 41. DW 2 who was the authorised signatory had made endorsement in Exhibit 41 that the said amount has been paid. Carbon copy of the bills which were marked Exhibit D to Exhibit D/5 speaks that credit amount reflected in Exhibit 23 to Exhibit 28 had been duly paid to the complainant. Similarly, Exhibit D/6 to D/11 speaks that the said amounts were paid in respect of Exhibit 23 to Exhibit 28 and those were received in cash. 9. Complexion of the case has been changed when the complainant/appellant adduced further evidence after being recalled on 11.07.2011 wherein he said ‘that Shri Amrit Singh was never authorised nor empowered to act as a Cash Collector or an accountant of my shop.’ But the documents on which the complainant/appellant relied bear the signature of Amrit Singh in some of the bills and signature of one Pandian in other bills. Therefore Amrit Singh was never authorised or to act as Cash Collector has not been substantiated. As a consequence at the instance of complainant, DW 2 was also recalled and during his cross-examination (after being recalled) the said DW 2 stated that while he was working in the firm of the complainant, he signed on some of the bills at the instance of the accused/respondents. The complainant in his initial deposition stated that DW 2 was not his employee at the relevant point of time. The complainant in his initial deposition stated that DW 2 was not his employee at the relevant point of time. But in spite of that signature of DW 2, appeared in the credit bills on the basis of which the complainant wanted to substantiate ‘legally enforceable debt’ of the accused/respondent. 10. Learned counsel appearing on behalf of the appellant triggered at the issue that vide question No. 7 the accused/respondent has admitted his guilt. After going through the said question, it appears to me that two questions were put to the accused/respondent at a time. The accused/respondent could not understand the question at all which can be easily deciphered from the question itself. Practically that question involves another question also. In the interest of effective adjudication of the case, I have to quote the question No. 7 which runs thus:— “Q.7 The said witness further said that you with an illegal intention and with the sole object and purpose of defrauding him on 17.4.2005 published a press note in the local news paper “The Daily Telegram” (Ext-33) stating that the aforesaid cheques have lost between Gurudwara Lane to Allahabad Bank and instructed the Bank to stop payment against those cheques. What have to say in this regard? Ans. Yes” 11. Therefore, first phase of the question put to him that his illegal intention and for the purpose of defrauding the complainant/appellant published a press note and second part of the question was whether he had instructed the Bank to stop payment against those cheques. He has answered the second limb of the question and it cannot be presumed by any stretch of imagination that the same will be considered to the question ‘illegal intention and with the sole object and purpose of defrauding’. 12. Therefore, it is crystal clear that the appellant/complainant failed to establish that there was any legally enforceable debt. It is true that issuance of cheque presupposes that there is a legally enforceable debt, but if accused could show that there is no due at all although cheques were issued to them, he does not come within the mischief of Section 138 NI Act. He has rebutted presumption supported by the documents and mainly the said documents were relied on by the complainant. 13. To overcome the crisis of the complainant/appellant, he had produced the Chartered Accountant, who has stated about the system of maintenance of accounts. He has rebutted presumption supported by the documents and mainly the said documents were relied on by the complainant. 13. To overcome the crisis of the complainant/appellant, he had produced the Chartered Accountant, who has stated about the system of maintenance of accounts. But his such statement could not be a sheet anchor for him. 14. In the result, the instant criminal appeal merits rejection. The impugned judgement passed by the learned Trial Court is hereby affirmed. 15. Let a copy of this judgement be sent to the learned Trial Court along with the LCR.