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2019 DIGILAW 732 (GAU)

Debojit Dutta v. Ranjit Kr. Hazarika

2019-06-12

RUMI KUMARI PHUKAN

body2019
JUDGMENT : Rumi Kumari Phukan, J. 1. Present revision is preferred against the judgment and order dated 18.04.2015, passed by the learned Session Judge, Jorhat, in Criminal Appeal No. 39/2012, whereby, the Appellate Court has affirmed the judgment and order of the learned Sub Divisional Judicial Magistrate, Jorhat, in CR Case No. 383/2008, whereby the present accused person was convicted under Section 138 of NI Act and sentenced the accused person to undergo simple imprisonment for one month and also to pay compensation of Rs. 2 lakhs to the complainant under Section 357(3) of the Cr.P.C. 2. I have heard Mr. M.U. Mahmud, learned counsel for the petitioner and Mr. S.K. Agarwal, learned counsel appearing on behalf of private respondent. 3. Necessary factual matrix that emerges from the record is that the petitioner purchased the vehicle bearing registration No. AS-25/C-2385 (bus) from the respondent/complainant amount for consideration of Rs. 3,35,000/- and entered into an agreement to that affect on 18.03.2007. The accused petitioner paid the complainant a sum of Rs. 1,30,000/- in cash and Rs. 20,000/- by cheque and also issued a post dated cheque (29.10.2007) of Rs. 1,85,000/- for the remaining amount. As per the agreement, the complainant delivered the vehicle to the accuse person and the accused assured to pay the balance amount given in the cheque after few months and he asked the complainant not to deposit the cheque immediately. The complainant also directed by the accused person did not deposit the cheque immediately and only presented the cheque for clearance on 10.04.2008 to the banker of the accused person. The cheque was dishonoured which was intimated to the complainant on 06.05.2008. Having no alternative, the complainant after serving the legal notice upon the respondents filed the complaint case before the court under Section 138 of NI Act. 4. The accused petitioner contested the case and denied the charge under Section 138 of NI Act. 5. In support of the case, the complainant examined five witnesses and defence also examined three witnesses. The learned trial court at the conclusion of the trial held the accused person guilty under Section 138 of NI Act and sentenced him as aforesaid. The appeal so preferred was also dismissed by the appellate court while upholding the findings of the trial court. Challenging the validity and legality of the aforesaid order, the present revision has been preferred against such concurrent findings. 6. The appeal so preferred was also dismissed by the appellate court while upholding the findings of the trial court. Challenging the validity and legality of the aforesaid order, the present revision has been preferred against such concurrent findings. 6. I have heard the submission of the learned counsel for both the parties and also gone through the impugned judgment and order of both the forums. It is to be noted that the learned trial court as well as appellate court has discussed and appreciated each and every aspect of the matter including the oral and documentary evidences. 7. The complainant has supported his complaint petition in his evidence and has stated that after entering into an agreement with the complainant that he is proposing to purchase the bus from the complainant for a consideration of Rs. 3,35,000/- he paid an amount of Rs. 1,30,000/- by cash and one another amount of Rs. 20,000/- by cheque and for the remaining amount of Rs. 1,80,000/- the accused issued post dated cheque. The complainant has produced and proved all the relevant documents pertaining to such transaction, like the agreement, the cheque in question, cheque return memo and the legal notice that was issued to the accused person prior to filing of the case. 8. The other witness, Dr. Ajit Kumar Bora/PW-2 and Pallab Deka/PW-4 supporting the contention of the complainant has submitted that PW-2 written the agreement between the parties regarding sale of said vehicle for an amount of Rs. 3,35,000/- and the transaction between the parties also made in presence of both of them i.e. PW-2 and PW-4 like cash payment and delivery of post dated cheque amounting to Rs. 1,85,000/- for the remaining balance amount. 9. The bank officials i.e. the Manager of Assam Gramin Bikash Bank/PW-3 has also supported that the cheque in question (exhibit-3) that was issued by their bank in the account number of the accused person, while presenting the bank for encashment, the same was bounced on 06.05.2008 due to closure of the account by the account holder on 15.04.2008 by the accused person. Accordingly, they have intimated the complainant about such dishonour of the cheque. 10. Accordingly, they have intimated the complainant about such dishonour of the cheque. 10. In this context, it is to be noted that the cheque in question was deposited before the bank on 10.04.2008 as requested by the accused person but in the meantime, the accused closed the account and on that day balance in his account was Rs.5,937/-. So, the evidence of the complainant itself clearly establishes that accused had no intention towards payment of cheque issued by him. 11. So far as the defence of the accused is concerned he has not challenged the issuance of such cheque but his defence is that he issued the post dated cheque to the complainant as a security only and that apart there was no clause in the agreement towards assignment of interest but the complainant has illegally entered such stipulation as regard the payment of interest in the agreement. It was his plea that he paid the complainant all the balance amount by way of instalment and he is not liable to pay any interest and the complainant instead of returning the cheque for Rs. 1,85,000/- to him had fraudulently presented the cheque to the bank and whereas he has no such account number in the said bank. It is also noted that the accused in his statement has admitted that he has issued said post dated cheques to the complainant but the evidence he adduced i.e. his father, Khogeswar Dutta/ DW-1, Sri Simanta Bordoloi/DW-2 and Nirud Handique-DW-3 has given a contradictory statement that although the accused issued post dated cheque but no payment was due on the part of the accused person. 12. The accused, however, never challenged the execution of the agreement vide exhibit-1 where there is a stipulation that accused had delivered two post dated cheques to the complainant one for Rs. 20,000/- and another for Rs. 1,85,000/-. The witnesses of the complainant has also approved that the accused delivered two post dated cheques to the complainant. On the other hand, the accused has also never challenged the execution of the cheque and the signature thereof but has failed to prove that he has paid the amount under the cheque by instalment as has been contended by him. Under these circumstances, it is clearly established that such cheque was issued against amount due to the complainant under the agreement. 13. Under these circumstances, it is clearly established that such cheque was issued against amount due to the complainant under the agreement. 13. Learned counsel for the petitioner has however contending the fact that the accused petitioner is not under any legal liability to pay the amount as the same is not legally enforceable debt in view of the fact that the complainant himself was not the owner of the vehicle in question at the time of his sale. Accordingly, a submission has been made that the complainant is not entitle to get payment as sought for and he is also not liable to pay the amount. 14. On bare perusal of the evidence on record and the documents produced by the complainant and the observation of the learned trial court it reflects that the matter has been duly appreciated by the court below. During the course of the proceeding, the complainant has exhibited the sale deed which was executed by the original seller Smt. Kusum Barua Saikia in favour of the complainant with the contention that for proper transfer of ownership the vendor will have to complete the necessary paper as per available in the office of the DTO. Thus, it was found that the bus was purchased by the complainant from the original vendor and the matter was under process for transferring the ownership in favour of the complainant. That being the position, while the petitioner being aware of such condition/stipulation in the agreement and he has already made part payment towards purchase of said vehicle cannot be permitted to raise the plea that the complainant being not owner of the vehicle is not entitle to get the remaining part of the amount. By his conduct itself the petitioner now estopped from raising such plea only to frustrate the claim of the complainant. The accused petitioner has miserably failed to rebut the presumption under Section 139 of the Act and the learned trial court has on due appreciation of entire matter on record has came to a proper finding about the guilt of the accused. There appears no irregularly in the order passed by the court below. The hard earned money of a person has been denied by such evasive plea of the accused person which cannot be allowed to prevail. There appears no irregularly in the order passed by the court below. The hard earned money of a person has been denied by such evasive plea of the accused person which cannot be allowed to prevail. The learned counsel for the petitioner has however prayed to consider the matter in its substance and petitioner is agreeable to pay the compensation amount as directed by the court. It is also noted that the learned trial court was very lenient while passing the award and has quantify Rs. 2 lakhs ( Rupees two lakhs) only as compensation whereas under the said provision the court can pass the sentence of twice the cheque amount in case of conviction. The case was filed in the year 2008 and the trial court order was passed on 2012 and the appellate court order was passed on 2015 and now it is 2019 and the complainant/ respondent is deprived of getting his due for such affairs. Taking note of all above while maintaining the sentence under Section 139 NI Act the same is converted to a fine of twice the cheque amount i.e. Rs. 3,70,000/- in default SI for six months. Amount of fine be given to the complainant as compensation. The complainant is hereby directed to deposit the amount before the trial court within a period of two months from today. 15. Send back the LCR.