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2019 DIGILAW 796 (CAL)

Palash Baran Dutta v. State of West Bengal

2019-08-09

MADHUMATI MITRA

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JUDGMENT : Madhumati Mitra, J. 1. This is an application under Section 401 read with Section 482 of the Code of Criminal Procedure filed by the petitioner Shri Palash Baran Dutta challenging the judgment and order dated 27th June, 2018 passed by the learned Additional Sessions Judge, 7th Court, Barasat in Criminal Appeal No. 12 of 2015 thereby affirming the judgment and order dated 13th March, 2015 passed by learned Judicial Magistrate, 1st Court, Barasat in complaint Case No. 1100 of 2002 under Section 138 of the Negotiable Instrument Act. (Hereinafter referred to as Act). 2. The present opposite party No. 2 Smt. Leela Dutta wife of late Monoranjan Dutta filed a complaint against the present petitioner for commission of the alleged offence punishable under Section 138 of the Negotiable Instrument Act. It was alleged in the said complaint that the present petitioner in discharge of his liability towards payment of consideration money for a piece of land purchased by him from the complainant issued a cheque of Rs. 65,000/- (Rupees Sixty five thousand) only in favour of the complainant i.e., present opposite party No. 2. The opposite party No. 2 presented the said cheque to her bank for encashment within its validity period but the said cheque was not honoured for insufficiency of fund. The opposite party/complainant served legal notice demanding the amount mentioned in the said cheque. The said notice was duly received by the present petitioner on 29th July, 2002. The petitioner refused to make payment of the amount of Rs. 65,000/- (Rupees Sixty five thousand) covered by the said cheque by giving a reply through his Advocate. Learned Magistrate was pleased to issue process against the present petitioner to face trial for commission of alleged offence punishable under Section 138 of the Negotiable Instrument Act. 3. After conclusion of trial, the learned Judicial Magistrate, 1st Court, Barasat convicted the present petitioner for committing an offence punishable under Section 138 of the Negotiable Instrument Act and sentenced him to suffer simple imprisonment for a term of six months and to pay fine of Rs. 1,30,000/- (Rupees One lakh thirty thousand) in total in default, to suffer further simple imprisonment for three months. 4. The petitioner having been dissatisfied with the Judgment and order of conviction, preferred a criminal appeal being No. 12 of 2015 before the learned Sessions Judge, Barasat, North - 24 Parganas. 1,30,000/- (Rupees One lakh thirty thousand) in total in default, to suffer further simple imprisonment for three months. 4. The petitioner having been dissatisfied with the Judgment and order of conviction, preferred a criminal appeal being No. 12 of 2015 before the learned Sessions Judge, Barasat, North - 24 Parganas. The said appeal was heard by learned Additional District and Sessions Judge, 7th Court, Barasat on 27th June, 2018. The learned Judge dismissed the said appeal on contest. The present petitioner was directed to surrender before the Court of learned Trial Magistrate within a period of fortnight from the date of delivery of the judgment. 5. The judgment and order passed by the Learned Judge in appeal are under challenge. 6. Learned Advocate appearing for the petitioner has assailed the impugned judgment and order of conviction mainly on two grounds. 7. His first contention is that the complainant filed the complaint against the petitioner for commission of offence punishable under Section 138 of the Negotiable Instruments Act without complying with the mandatory provisions contained in proviso (C) to Section 138 of the Negotiable Instruments Act. 8. According to his contention the complaint under Section 138 of the Negotiable Instruments Act was premature one and was not tenable in law as it was filed before expiry of 15 days from the date of receipt of the notice for making payment. 9. The second contention of the Learned Counsel appearing for the petitioner is that the impugned cheque was issued as security not in discharge of any existing debt and liability. Learned Advocate for the petitioner has further contended that the Learned Judge overlooked to consider this aspect while passing the impugned judgment. 10. In the present case, admittedly the petitioner purchased a piece of land from the complainant on payment of consideration money. It is the specific case of the complainant that the present petitioner issued one cheque bearing no. 073980, dated 10.07.2002 drawn on Allahabad Bank Madhyamgram Branch in her favour towards the payment of consideration money for that land. Complainant presented the said cheque to her bank for encashment within its validity period. The said cheque was not honoured for insufficiency of fund. Complainant sent a legal notice dated 20th July, 2002 by registered post with acknowledgment due demanding the amount covered by the cheque. Complainant presented the said cheque to her bank for encashment within its validity period. The said cheque was not honoured for insufficiency of fund. Complainant sent a legal notice dated 20th July, 2002 by registered post with acknowledgment due demanding the amount covered by the cheque. Petitioner received that notice on 29.07.2002 and gave reply to the said legal notice vide letter dated 08.08.2002 and refused to make payment to the complainant. It has been vigorously argued by the Learned Advocate for the complainant that the complaint under Section 138 of the Negotiable Instrument Act, was filed prior to expiry of fifteen days from the date of receipt of the legal notice and as such the complaint was premature one. He has further contended that no complaint which is filed before expiry of 15 days from the date of receipt of the notice to pay the amount covered by the cheque in question should be entertained by the Court as the cause of action arises only after the expiry of said period as mentioned in Clause (C) of the proviso to Section 138 of the Act. 11. In support of his contention, the Learned Advocate appearing for the petitioner has placed his reliance on the following decisions:- (1) (2009) 1 CR.L.R(SC) 513, (2006) 3 SCC (Cri)30 and in the decision of Yogendra Pratap Singh Vs. Savitri Pandey & Anr. on 19th September, 2014 of Hon'ble Apex Court in Criminal Appeal no. 605 of 2012. Relying on the decision of the Hon'ble Apex Court in Yogendra Pratap Singh Vs. Savitri Pandey and Anr., the Learned Advocate for the petitioner has forcefully contended that the present complaint was filed before expiry of 15 days from the date on which the notice had been served. 12. Learned Advocate appearing for the petitioner has placed strong reliance in support of contention on the decision of Yogendra Pratap Singh Versus Savitri Pandey and Anr. 13. In the decision of Hon'ble Apex Court in Yogendra Pratap Singh Versus Savitri Pandey and Anr., the factual matrix noted in the referral order is that the appellant filed a complaint under Section 138 of the Negotiable Instruments Act against respondent no. 1 Smt. Savitri Pandey. The respondent's case was that four cheques issued by the accused-respondent in his favour were dishonoured when presented for encashment. 1 Smt. Savitri Pandey. The respondent's case was that four cheques issued by the accused-respondent in his favour were dishonoured when presented for encashment. A notice calling upon the respondent-drawer of the cheque to pay the amount covered by the cheques was issued and duly served upon the respondent as required under Section 138(C) of the N.I. Act. No payment was, however, made by the accused till 07th October, 2008 when a complaint under Section 138 of the N.I. Act was filed before the Magistrate. Significantly enough the notice in question having been served on 23rd September, 2008 and the complaint was filed on 07th October, 2008 i.e. before expiry of stipulated period of fifteen days. 14. In the present case the petitioner/accused communicated his intention in writing to the complainant that he would not make payment before expiry of 15 days from the date of receipt of the demand notice. The decision cited by the Learned Advocate for the petitioner has no bearing with the present case. 15. Materials placed on record reveal that this issue was raised for the 1st time before the Learned Appellate Court in criminal appeal no. 12 of 2015. Learned Appellate Court has decided the said plea taken by the petitioner in favour of the complainant. Petitioner has again raised the same plea that the complaint was pre-mature one and ought not to have been entertained by the Learned Magistrate. 16. Now the question comes whether non-compliance with the provision contained in Clause (C) of the proviso to Section 138 of the Negotiable Instruments Act, would vitiate the entire proceedings arising out the complaint filed by the complainant. 17. From the language used in Clause (C) of the proviso to Section 138 of the Act, it is clear that the drawer of the cheque is required to pay the amount covered by the cheque within fifteen days from the date of receipt of the notice and the cause of action to file the complaint normally arises after expiry of said fifteen days. The object of insertion of Clause (C) of the proviso to Section 138 of the Negotiable Instruments Act is to give an opportunity to the drawer of the cheque to pay the amount covered by the cheque before taking any legal action against him. The object of insertion of Clause (C) of the proviso to Section 138 of the Negotiable Instruments Act is to give an opportunity to the drawer of the cheque to pay the amount covered by the cheque before taking any legal action against him. In the instant case, admittedly the drawer of the cheque i.e. the present petitioner gave a reply to the legal notice of the complainant denying his liability and refused to make payment of the amount covered by the cheque. When the drawer of the cheque expresses his intention not to make payment and communicates the said intention to the drawee of the cheque before expiry of 15 days from the date of receipt of the notice to make payment, then not to file the complaint before expiry of 15 days becomes redundant. Refusal to make payment of the amount covered by the cheque also gives rise to cause of action to bring an action under Section 138 of the Act as opportunity to make payment is given to the accused. Period of 15 days mentioned in Clause (C) of proviso to Section 138 of the Act is required to bring an action only when he drawer does not respond to the legal notice to make payment by giving reply or he keeps mum. In the instant case, before expiry of 15 days from the date of receipt of the legal notice the petitioner expressly communicated his intention in writing not to make payment. 18. In the present case, the interest of the petitioner was not prejudiced anyway for filing the complaint by the complainant before expiry of 15 days as the petitioner was not willing from the very beginning to make payment. Clause (C) of proviso to Section 138 provides opportunity to the drawer to make payment within 15 days from the date of receipt of legal notice. In fact, in the present case there was no justification to wait till the expiry of fifteen days. 19. From the above discussions, it can be safely said that the complaint was not premature one. 20. The second contention of the petitioner is that the impugned cheque was issued not in discharge of any existing liability. In fact, in the present case there was no justification to wait till the expiry of fifteen days. 19. From the above discussions, it can be safely said that the complaint was not premature one. 20. The second contention of the petitioner is that the impugned cheque was issued not in discharge of any existing liability. Learned Advocate for the petitioner has forcefully contended that the cheque in question was issued as security and the entire consideration money for purchasing a plot of land was paid to the complainant in cash and the same was reflected in the recitals of the sale deed. Admittedly, the petitioner purchased a piece of land from the complainant. From the evidence on record, it appears that the petitioner handed over the cheque to the complainant at the time of registration of the deed as consideration money. Contention of the petitioner is not based on the evidence on record. 21. In the instant case, the factual findings of the Learned Magistrate have been affirmed by the Learned Appellate Court. Learned Magistrate and Learned Additional Session Judge came to the specific concurrent factual findings that the petitioner issued a cheque of Rs. 65,000/- (Rupees Sixty Five Thousand) in favour of complainant in discharge of his liability 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 the Negotiable Instruments Act. However, the drawer would get the opportunity to rebut the presumption. The Court has to presume under Section 139 of the Negotiable Instruments Act that the cheque has been issued for a debt or liability. 22. In the instant case, the materials placed on record show that the petitioner issued the cheque for Rs. 65,000/- in discharge of his liability. 23. 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 Appellate Court. Moreover, the High Court in exercise of its inherent power should not reanalyze and re-assess the materials particularly the evidence on record. 24. Moreover, the High Court in exercise of its inherent power should not reanalyze and re-assess the materials particularly the evidence on record. 24. On perusal of the entire materials on record, it cannot be held that the Learned Courts below committed an error in holding that the petitioner committed an offence under Section 138 of the Negotiable Instruments Act. 25. In view of the above discussions, I have no hesitation to say that it is not a fit case to exercise the inherent power of the High Court. 26. The present application is devoid of merit and stands dismissed. 27. Accordingly, the application being C.R.R. 1841 of 2018 stands dismissed. 28. Petitioner is directed to comply with the direction of the Learned Trial Magistrate immediately. 29. Urgent Photostat certified copy of this judgment, if applied for, be given to the parties, upon compliance with all necessary formalities.