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2018 DIGILAW 98 (CAL)

Dhirendra Nath Pattanayak v. Sujit Kumar Maity

2018-01-12

DEBI PROSAD DEY

body2018
JUDGMENT : DEBI PROSAD DEY, J. 1. Challenge under this application under Section 482 of the Code of Criminal Procedure is the judgment and order dated 13th January 2012 passed by the learned Sessions Judge, Paschim Medinipur in Criminal Appeal No. 15 of 2011 whereby and whereunder the learned Sessions Judge has affirmed the judgment and order of sentence dated 15th June 2011 passed by the learned Judicial Magistrate, IV Court, Paschim Medinipur, in CR Case No. 142 of 2007 under Section 138 of the Negotiable Instruments Act, 1881 and sentenced them to suffer simple imprisonment for two years and pay a fine of Rs. 12 lac and thereafter directed that said fine amount if realized be paid to the complainant/opposite party No. 1. Learned Sessions Judge further modified the sentence by affirming the judgment to the effect that Rs. 11 lac ought to be paid towards fine by the petitioners and remaining 1 lac to be credited to the exchequer of the Government of West Bengal. 2. Learned Advocate for the petitioner Mr. Bhattacharya contended that the petitioners have not been properly examined by the learned trial Court under Section 313 of the Code of Criminal Procedure and thereby the petitioners have been seriously “prejudiced” and they did not even answer the allegations levelled against them properly in the trial Court. The incriminating materials and evidence produced and adduced against the petitioners were not put to the petitioners at the time of their examination under Section 313 of the Code of Criminal Procedure and thereby the petitioners were prevented from explaining the circumstances in respect of such incriminating materials resulting in serious miscarriage of justice. 3. Mr. Bhattacharya further contended that the company has not been arrayed as an accused and in absence of the company the petitioners cannot be convicted for the offence punishable under Section 138 of the Negotiable Instruments Act. It is further submitted that the complainant had no financial capacity to advance any loan amount to the petitioners and complainant has failed to prove his financial capacity in providing such loan to the petitioners. Therefore, the complainant has failed to prove the existing liability of the petitioners in issuance of alleged cheque in favour of the complainant. It is further submitted that the complainant had no financial capacity to advance any loan amount to the petitioners and complainant has failed to prove his financial capacity in providing such loan to the petitioners. Therefore, the complainant has failed to prove the existing liability of the petitioners in issuance of alleged cheque in favour of the complainant. It is submitted that the cheque was handed over to the complainant as a collateral security but the complainant has misused the same by filing the application under Section 138 of the Negotiable Instruments Act. In support of his contention learned Advocate for the petitioner has relied on following decisions reported in: (i) 1971 SCC (Cri) 97. State of Madras v. G.V Parekh (ii) (2014) 1 C. Cr. L.R (SC) 518 John K. Abraham v. Simon C. Abraham 4. Learned Advocate for the opposite party No. 1 contended that there was absolutely no need of proving the financial capacity of the complainant since on the strength of Section 118 of the 139 of the Negotiable Instruments Act it is incumbent upon the Court concerned to presume the existing liability of the petitioners. Moreover, the petitioners also could not prove anything in the trial Court that such cheques were issued as a collateral security. It is further submitted that the burden of proof that the cheque had not been issued for any debt or liability is on the petitioners and they have failed to discharge their burden of proof resulting in drawing of presumption as stipulated under Sections 118 and 139 of the Negotiable Instruments Act against the petitioners. 5. It is true that all the incriminating materials are required to be put in during the examination of the petitioners so that an opportunity of explaining such incriminating circumstances may be given to the accused in a criminal trial. The purpose of incorporating section 313 of the Code of Criminal procedure is primarily based on the principle of natural justice. Therefore, the impact and the importance of the examination of the accused under Section 313 of the Code of Criminal Procedure cannot be ruled out altogether. Admittedly, learned Trial Court had put only one substantial question to the petitioners at the time of examination of the petitioners under Section 313 of the Code of Criminal Procedure. 6. Therefore, the impact and the importance of the examination of the accused under Section 313 of the Code of Criminal Procedure cannot be ruled out altogether. Admittedly, learned Trial Court had put only one substantial question to the petitioners at the time of examination of the petitioners under Section 313 of the Code of Criminal Procedure. 6. Mere allegation of “prejudice” will not give any mileage to the petitioners for enormous examination under Section 313 of the Code of Criminal Procedure. The only incriminating material in a case under Section 138 of the Negotiable Instruments Act is that the petitioners did not honour the cheque issued by the petitioners in favour of the complainant. In the petition of complaint the complainant described in detail about the allegations levelled against the petitioners. The petitioners did not even reply to the notice served upon them though belatedly they tried to reply the same by raising some imaginative allegations against the complainant. The petitioners knew at the time of trial as to the nature of allegations levelled against them. The petitioners in support of their contention had tried to establish by examining one witness that in fact cheque was issued as a collateral security. Simultaneously, the petitioners have raised the points of financial capacity of the complainant/opposite parties No. 1 in advancing such loan to the petitioners. That goes to show that in fact the petitioners were well aware of the allegation levelled against them and the examination of the petitioners under Section 313 of the Code of Criminal Procedure has become a mere formality than to give a chance to the petitioner to explain the circumstances resulting in filing of such petition and compliant against the petitioners. The learned 1st appellate Court has also dealt with the examination of the petitioners under Section 313 of the Code of Criminal Procedure and accordingly I do not find that the petitioners have been seriously “prejudiced” by the mode and manner of their examinations under Section 313 of the Code of Criminal Procedure. The learned 1st appellate Court has also dealt with the examination of the petitioners under Section 313 of the Code of Criminal Procedure and accordingly I do not find that the petitioners have been seriously “prejudiced” by the mode and manner of their examinations under Section 313 of the Code of Criminal Procedure. However, learned trial Court ought to have been cautious enough in examination of the accused under Section 313 of the Code of Criminal Procedure in a criminal trial; it is apparent from discussions made in the body of the judgment of the learned 1st appellate Court that the petitioners were partners of a partnership firm and the petition of complaint was filed against the petitioners as partners of the partnership firm. 7. The status of a company and a partnership firm is absolutely different in the context of liability of the company and the partnership firm in civil and criminal cases. The liability of shareholders of a company are limited to the extent of the value of their shares and the shareholders cannot be made liable beyond the value of their shares in their personal capacity. However, the liability of a partner in a partnership firm is unlimited and the partners are liable to meet the liability of such partnership firm even in their personal capacity. It is apparent from the judgment of the learned 1st appellate Court that the present petitioners were members of the earlier partnership firm and after issuance of such cheque they have changed the nomenclature of the partnership firm but they remained partners of that partnership firm. Cheque was issued in their personal capacity and accordingly it was not incumbent upon the compliant to implead the partnership firm. The case under reference cannot be challenged only on the ground that the partnership firm has not been arrayed as accused in the case. The decision relied on by learned Advocate of the petitioner reported in 1971 SCC (Cri) 97 (supra) is thus not applicable in the context of the given facts and circumstances of this case. It has been observed by the Supreme Court in the decision reported in (2014) C. Cr. The decision relied on by learned Advocate of the petitioner reported in 1971 SCC (Cri) 97 (supra) is thus not applicable in the context of the given facts and circumstances of this case. It has been observed by the Supreme Court in the decision reported in (2014) C. Cr. LR (SC) 510 (supra) that the complainant had no knowledge about the amount that was advanced by him and the complainant had no knowledge as to who scribe of the cheque and he was also not aware of the place of alleged transaction. In addition to that the complainant also could not justify the source of fund in order to establish his financial capacity having regard to the facts and circumstances of that case. The learned trial Court acquitted the accused but the High Court concerned reversed the judgment of acquittal. The Hon'ble Suprme Court has however in the context of the given facts and circumstances of this case upheld the judgment passed by the learned trial Court. The facts of the case are not similar to the facts of the instant case. The complainant in the case under reference is fully aware that the cheque was issued by the petitioners and they had issued such cheque in due discharge of their liability and therefore, in terms of Section 118 and 139 of the Negotiable Instruments Act the learned trial Court was justified in coming to a specific conclusion that the petitioners are guilty of an offence under Section 138 of the Negotiable Instruments Act. Our High Court in a decision reported in 2006 (1) CHN 448 Asim Kumar Saha v. Nepal Mahato has observed that in order to prove the charge under Section 138 of the Negotiable Instruments Act it is not necessary to prove the financial capacity of the complainant that the Court shall take into account Sections 118 and 139 of the Negotiable Instruments Act. In a case under Section 138 of the Negotiable Instruments Act it has been accepted by our Apex Court in a good number of decisions and the learned Advocate for the opposite party No. 1 has referred a few decisions namely: (i) (2001) 6 SCC 16 Hiten P. Dalal v. Bratindranath Banerjee (ii) (2001) 8 SCC 458 : AIR 2001 Supreme Court 2895 K.N Beena v. Muniyappan 8. In both the cases referred to hereinabove the Apex Court has consistently held that even by adducing the defence witness petitioners have failed to prove that the cheque was issued as a security by the petitioners. Therefore, the question of dealing with on such point of security becomes redundant. 9. It is apparent from the judgment of both the courts below that the petitioners have been sentenced to suffer rigorous imprisonment for two years and to pay a fine of Rs. 12 lac. Learned 1st appellate Court has further modified the same by directing Rs. 11 lac is to be paid towards fine and Rs. 1 lac has to be deposited in the Government exchequer. 10. The chief object of the Negotiable Instruments Act is to legalize the system of transactions by written documents so that negotiable instrument passes from hand to hand in negotiation like ordinary goods. The preliminary object of such act is to ensure a free circulation of the negotiable instruments from hand to hand without confusion and absurdity but with precision and certainty. In order to promote the commerce through cheque, negotiable instruments the provisions of Negotiable Instruments Act have been amended. To put both the petitioners behind the bar for two years would not serve the purpose of Negotiable Instruments Act. On the contrary the petitioners should be compelled to pay the amount in respect of the cheque issued by them and on that score they may be made liable to pay some sort of fine. In that view of this case I find it convenient to invoke the jurisdiction of section 482 of the Code of Criminal Procedure to set aside the sentence of simple imprisonment for two years but simultaneously I find it just and proper to maintain the sentence of fine as directed by the learned 1st appellate Court. However, the petitioners shall remain present at an appropriate date before the trial Court to be decided by the trial Court after receipt of the Lower Court Record and they must remain confined in the trial Court till the rising of the Court for one working day and they shall deposit the fine amount as directed by the learned Sessions Judge within a month from the date of this order and the complainant opposite party No. 1 shall be at liberty to withdraw the said amount from the trial Court. The sentence of conviction for two years is thus modified to one day in trial Court till the rising of the Court. 11. The application under Section 482 of the Code of Criminal Procedure Code stands disposed of. 12. Concerned department is directed to send down the lower Court records along with the copay of this order to the learned Judicial Magistrate IV Court., Paschim Medinipur as expeditiously as possible. 13. Urgent photostat certified copy of this order, if applied for, be given to the parties as expeditiously as possible.