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2019 DIGILAW 733 (GAU)

Babul Ahmed Laskar v. Samiran Bhattacharjee

2019-06-12

RUMI KUMARI PHUKAN

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JUDGMENT : Rumi Kumari Phukan, J. 1. Heard Mr. K. Uddin, learned counsel appearing for and on behalf of the petitioner as well as Mr. S. Das, learned counsel representing the respondent No. 1. 2. The case in nutshell is that on 29.12.2009, the respondent Samiron Bhattacharjee filed a complaint before the Court of learned CJM, Cachar at Silchar, stating that the accused/petitioner took a loan from him amounting to Rs. 6 lacs and towards the liability for repayment of the loan, he issued six numbers of cheque of Rs. 1 lac each, dated 16.06.2009, 16.07.2009, 16.08.2009, 16.09.2009, 16.10.2009 and 16.11.2009. The cheques were dishonoured on being presented to the Bank concerned for the reason fund insufficient. On being intimated, the said complainant lodged a complaint before the Court u/s. 138 of the N.I. Act, after giving the necessary legal notice under the law. 3. The accused/petitioner faced the trial and denied the charge. 4. During the trial, the complainant examined himself in support of his case and exhibited relevant documents including the cheques in question, the cheque return memos, legal notice, etc. In his evidence, the complainant has narrated all about the facts that was alleged in the complaint petition that the accused despite having knowledge of dishonour of the cheques, has failed to repay the amount. The complainant/respondent has also exhibited certain reply of the accused/petitioner vide Ext.14 that he is ready to pay the amount for which he may be provided sometime. The accused/petitioner did not even cross-examine the complainant and in his statement recorded u/s. 313 Cr.P.C. the accused admitted all about the issuance of cheques and his liability to pay but his only contention was that due to financial constrain, he was unable to pay the same. 5. The learned trial Court, on the basis of such admission of the accused/petitioner coupled with the fact that there is no rebuttal evidence to the case of the complainant, finally found and hold the accused guilty u/s. 138 of the N.I. Act and convicted and sentenced him to suffer simple imprisonment for one year and pay a compensation of Rs. 10 lacs to the complainant by its order dated 16.09.2013. 6. On the appeal, so preferred by the accused/petitioner, the Appellate Court affirmed the judgment and dismissed the appeal. 10 lacs to the complainant by its order dated 16.09.2013. 6. On the appeal, so preferred by the accused/petitioner, the Appellate Court affirmed the judgment and dismissed the appeal. At the time of hearing of the appeal also, the accused/petitioner did not turn up to contest the same and the learned Appellate Court was compelled to hold that the appellant is not interested to contest the appeal and on appreciation of the evidence of the trial Court as well as the findings that the accused has all through admitted his liability, which support and prove the case of the complainant, the learned Appellate Court by its order dated 11.06.2015, has affirmed the judgment of the trial Court. 7. It is also to be noted that while carrying on the matter by way of this revision before this Court challenging the aforesaid orders, the petitioner never challenged the aforesaid findings but his only contention which has been averred in the Revision Petition is that he has not yet received the bills from the concerned Department for the works he has done namely, Repair/Renovation of Boundary Wall for the BMW installation at SMCH, Silchar. Moreover, it is stated in para 4 of the Revision Petition that the petitioner is not yet received his due amount for executing the aforesaid works, worth Rs. 2 crores and due to which he has suffered from financial crisis and unable to pay the loan amount that was taken from the complainant. There being absolutely no denial for taking of loan from the complainant and also about the issuance of the cheques towards payment of his debt, there survives nothing to adjudicate the matter in the revision, as it is discernable that the petitioner has filed the revision seeking further time for payment, vide para 4 of the Revision Petition, wherein he has specifically stated that there was a talk of amicable settlement between the parties and he prayed time for payment of compensation but he could not make the payment. 8. Peculiarly he has also mentioned that he is even ready to sale his native house for making payment but he could not sell the same and without receipt of his due amount, the petitioner failed to pay the compensation amount to the complainant. 8. Peculiarly he has also mentioned that he is even ready to sale his native house for making payment but he could not sell the same and without receipt of his due amount, the petitioner failed to pay the compensation amount to the complainant. It is stated that the loan amount was invested in executing the aforesaid works and till date, payment has not been made to the petitioner and the petitioner is expecting that the payment would be made and accordingly he would pay the compensation amount to the opposite party/ complainant. 9. In view of such clear admission on the part of the petitioner, I do not find any reason for challenging the aforesaid order before this Court. 10. Today the learned counsel for the petitioner has also agreed to the status of the petitioner that he has already admitted all about the liability and he is still ready to pay the amount. The learned counsel for the respondent has also apprised that the talk of settlement was failed and the petitioner could not repay any amount under the said order. 11. The learned counsel for the petitioner however has submitted that the petitioner is still ready to pay the amount but his sentence period should be considered by this Court leniently. It is to be noted that the aforesaid case was filed far back in the year 2009 and the learned trial Court dispose of the matter in 2013 and the appellate Court order was passed in the year 2015 and since then the petition is pending before this Court, without any action on the part of the petitioner. However having regard to the submission of learned counsel for the petitioner, while maintaining the conviction u/s. 138 of the N.I. Act, the same is converted to the sentence of fine only. 12. Accordingly the petitioner is hereby sentenced to pay a fine of twice the cheque amount i.e. Rs. 12 lacs, within a period of two months from today, before the trial Court, in default simple imprisonment for one year. 13. Return the LCR with a direction to the petitioner to deposit the fine amount before the learned trial Court, as directed.