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2019 DIGILAW 473 (CAL)

Ratan Murmu v. Paschim Banga Gramin Bank

2019-04-09

MADHUMATI MITRA

body2019
JUDGMENT : 1. This is an application under Section 482 read with Section 401 of the Code of Criminal Procedure filed by the petitioners challenging the judgment dated 13.12.2018 passed by the Learned Sessions Judge, Birbhum, Suri in connection with Criminal Appeal No. 20 of 2018. By the impugned judgment Learned Sessions Judge confirmed the judgment and order of conviction of the petitioners passed by the Learned Additional Chief Judicial Magistrate, Suri, Birbhum, in A.C. Case No. 13 of 2016 under Section 138 of the Negotiable Instruments Act 1881. 2. Present opposite party no. 1 Paschim Bangla Gramin Bank filed a complaint against the present petitioners for commission of alleged offence under Section 138 of the Negotiable Instruments Act. It was alleged in the said complaint that the present petitioners being the Doloneta and Sahodaloneta of Marang Guru Joint Liability Group and being customer of Paschim Banga Gramin Bank took a group loan amounting to Rs. 1,50,000/- on and from 02.12.2010 repayable as per agreement. Subsequently they failed to repay the said loan in terms of loan agreement. Petitioners on demand of the Bank jointly issued and delivered a cheque of Rs. 70,000/- vide cheque no. 530656 dated 14.11.2015 drawn on Paschim Banga Gramin Bank, Md. Bazar Branch in favour of the complainant Bank in discharge of their debts and liabilities. The said cheque was presented for encashment on the same date but was dishonoured due to insufficient of fund. Opposite party/complainant served legal notice demanding the amount of Rs. 70,000/- within 15 days from the date of receipt of the said notice. Petitioners did not pay the said amount in spite of the receipt of demand notice. Opposite party Bank filed complaint against the petitioners. Learned Magistrate was pleased to issue process against the petitioners to face trial for commission of alleged offence punishable under Section 138 of the Negotiable Instruments Act. 3. After conclusion of trial, the Learned Additional Chief Judicial Magistrate, Suri, Birbhum by her judgment and order dated 27.04.2018 was pleased to convict the petitioners for committing an offence under Section 138 of the Negotiable Instruments Act and sentenced them to suffer simple imprisonment till raising of the Court and to pay a compensation of Rs. 72,000/- jointly on or before 12.07.2018 and in default simple imprisonment for thirty days each. 4. Being aggrieved, the petitioners preferred criminal appeal being no. 72,000/- jointly on or before 12.07.2018 and in default simple imprisonment for thirty days each. 4. Being aggrieved, the petitioners preferred criminal appeal being no. 20 of 2018 before the Learned Sessions Judge, Birbhum and Learned Sessions Judge on 13.12.2018, dismissed the said appeal and affirmed the judgment and order of conviction passed by Learned Additional Chief Judicial Magistrate, Suri, Birbhum. 5. The impugned judgment of the Learned Sessions Judge affirming the judgment of conviction and sentence of the petitioners has been assailed by the Learned Advocate of the petitioners mainly on two grounds. He has strongly contended that the learned Trial Magistrate and Learned Sessions Judge failed to consider that the cheque in question was issued not in discharge of any legally enforceable debt and liability as the claim of the Bank had been barred by limitation prior to issuance of the cheque. It is his specific contention that the petitioners never took the loan in their personal capacity. It has been contended that they took the loan for the group and as such they cannot be personally held responsible for the dues of the bank. 6. Learned Advocate for the petitioners has forcefully contended that the petitioners took the loan from the complainant Bank not in their personal capacity, but on behalf of the Marang Guru Joint Liability Group and they were the Daloneta and Sahodaloneta of the said group and the loan agreement mentioned that the said loan was granted Marang Guru Joint Liability Group. Learned Advocate for the petitioners has further submitted that the demand notice as well as the cause title of the complaint did not mention anything in this regard. Cause title of the complaint shows as if the petitioners took the loan from opposite party Bank in their personal capacity but not as Deloneta and Sahadeloneta. 7. Another contention of the Learned Advocate for the petitioners is that the loan was disbursed by the Bank on 02.12.2010 and the cheque in question was issued in favour of the opposite party Bank on 14.11.2015. Learned Advocate appearing for the petitioners has contended that the loan amount was required to be recovered within three years from the date of disbursement i.e. within 02.12.2013, but the cheque in question was issued on 14.12.2015 i.e after the expiry of the period of limitation. Learned Advocate appearing for the petitioners has contended that the loan amount was required to be recovered within three years from the date of disbursement i.e. within 02.12.2013, but the cheque in question was issued on 14.12.2015 i.e after the expiry of the period of limitation. Learned Advocate for the petitioners has vigorously submitted that the liability of the petitioners to repay the dues of the bank ceased to exist after expiry of three years from the date of disbursement. According to his contention the cheque in question was not issued in discharge of any debt or liability as the claim of the bank was time barred. 8. Learned Trial Magistrate, on analysis of the materials placed on record and evidence adduced by the parties came to the factual finding that the petitioners/accused had duly issued the cheque in question for Rs. 70,000/- in the favour of the opposite party Bank in discharge of the existing debt and the said cheque was presented to the Bank for encashment within its validity period. The said cheque was not honoured due to insufficient fund. Demand notice was served upon the petitioners to which there was no response from the end of the petitioners. 9. In her judgment Learned Magistrate observed that the petitioners had acknowledged their outstanding dues on 30.11.2013 as appeared in balance confirmation letter and confirmed that the outstanding amount as Rs. 1,72,063/-. Learned Magistrate observed that a new period of limitation started from 30.11.2013 i.e from the date of acknowledgement of dues by the petitioners. Learned Appellate Court also affirmed the aforesaid factual findings of the Learned Magistrate. Learned Magistrate and Learned Sessions Judge came to the same specific concurrent factual finding that the petitioners issued a cheque of Rs. 70,000/- in favour of the Bank on 14.12.2015 and the said cheque was dishonoured when presented for encashment. Once a cheque is issued by the drawer a presumption would arise under Section 139 of Negotiable Instruments Act 1881. However, the drawer would get opportunity to rebut this presumption. The Court has to presume under Section 139 of the Negotiable Instruments Act that the cheque had been issued for a debt or liability. Once a cheque is issued by the drawer a presumption would arise under Section 139 of Negotiable Instruments Act 1881. However, the drawer would get opportunity to rebut this presumption. The Court has to presume under Section 139 of the Negotiable Instruments Act that the cheque had been issued for a debt or liability. The burden of proving that there was no existing liability is on the accused and he has to prove by adducing convincing and cogent evidence that the cheque was not issued in discharge of any debt or liability. If the accused has succeeded in discharging the said burden under Section 139 of the Act, the burden shifts to the complainant to prove his case beyond doubt without the help of Section 139 of the Negotiable Instruments Act. In the instant case the petitioners had failed to discharge the burden that there was no legally enforceable debt when they had signed on the cheque. 10. It is a settled principle of Law that in exercise of its power under Section 482 of the Code of Criminal Procedure, the High Court should not, in the absence of perversity, upset concurrent factual findings of trial court and appellant Court. Moreover, the High Court in exercise of its inherent power should not re-analyse and re-assess the materials particularly the evidence on record. 11. On perusal of the entire materials on record it cannot be held that Learned Courts below committed an error in holding that the petitioners (accused) committed an offence under Section 138 of the Negotiable Instruments Act. 12. Having regards to the facts and circumstances of the case, I am of the view that it is not a fit case to exercise the inherent power of the High Court. 13. According the application being CRR No. 270 of 2019 stands dismissed. Petitioners are directed to comply with the direction of Learned Trial Magistrate immediately. 14. Urgent Photostat certified copy of this order, if applied for, shall be supplied expeditiously after complying with all necessary legal formalities.