Research › Search › Judgment

Calcutta High Court · body

2020 DIGILAW 66 (CAL)

Jeeja Ghani v. The State

2020-01-15

SUBHASIS DASGUPTA

body2020
JUDGMENT Subhasis Dasgupta, J. - The impugned order dated 2 nd September, 2019 passed by learned Sessions Judge, Andaman and Nicobar Islands at Port Blair allowing appellant/accused to adduce additional evidence is the subject matter of challenge in this revisional application. 2. Learned advocate for the revisionist/complainant submitted that learned Court below had improperly exercised its authority by deciding one of the grounds, taken in this appeal by permitting Opposite Party/Appellant to adduce additional evidence in connection with pending Appeal, what the Court below was not authorized to do in an interlocutory stage and, thus, pre-judged the appeal favourable to the purpose of Appellant/Opposite Party causing great prejudice to the right of revisionist/complainant. 3. In reply, learned advocate for the opposite party/accused submitted that since the Court below incidentally made some observation in the judgment holding that the accused had failed to adduce evidence from his banker that at the time of presentation of the cheque, he had sufficient funds in his account in order to rebut the presumption available under Section 139 of the Negotiable Instruments Act, the accused/appellant was not left with any other alternative, but to apply for adducing additional evidence simply to clarify the circumstances for removal of the doubts. 4. Supporting the order of the learned Court below, learned advocate for the Opposite Party no. 2 submitted that there left nothing to be interfered with in the order impugned. 5. Admittedly, the cheque involved an amount of Rs. 13.00 lakhs, which was returned unpaid for the signature of the drawer having been differed/mismatched. Further admitted position is that the cheque was presented before the banker for encashment, on 11 July, 2016. 6. Upon perusal of the impugned order, it appears that insufficiency of the fund was not the crux of the contention resulting in initiation of instant prosecution under Section 138 of the Negotiable Instruments Act. 7. In order to assail the impugned judgment holding Appellant to be guilty, the opposite party/accused had principally taken a ground denying to have issued the cheque. 8. From the materials available in the case records, it would appear that in the cross-examination the opposite party/accused admitted to have issued the cheque with sufficient knowledge that the same would be dishonoured, when presented for encashment. 8. From the materials available in the case records, it would appear that in the cross-examination the opposite party/accused admitted to have issued the cheque with sufficient knowledge that the same would be dishonoured, when presented for encashment. Incidentally, the Trial Court, while holding the accused guilty, made observation upon perusal of statement of accounts produced that the accused had failed to adduce any evidence from his banker that, at the time of presentation of the cheque, he had sufficient fund in his account, and, thus, failed to discharge the burden so as to rebut the presumption available under Section 139 of the Negotiable Instruments Act. But, the more significant aspect is that the Trial Court was conscious of a fact that, if a payee is unable to encash the cheque, because of some deliberate acts of the drawer, the drawer of the cheque should not be allowed to escape from the rigour under Section 138 of the Negotiable Instruments Act taking a plea of mismatch of his signature, which the drawer of the cheque deliberately and purposefully put his signature knowing fully well that it will remain unpaid, when presented for encashment. 9. By allowing the additional evidence to be adduced, the opposite party/appellant was permitted to produce the statement of account of accused/opposite party maintained in Bank subsequent to the period from 19.03.2016 to 11.07.2016, which however, went unproduced during the trial of this case, despite due diligence exercised by the opposite party/accused, simply for clearing the ambiguity, found in the observation made in the judgment holding the opposite party/accused to be guilty. True it is that the appellant/accused had taken this point, as one of the grounds contained in the memo of appeal but, more important is that there are other points also taken in the memo of appeal requiring address by the Appellate Court for the purpose of perfect decision of appeal. 10. The Appellate Court, while exercising its authority, proceeded to allow the additional evidence to be adduced, borrowing principle from civil perception, which cannot be construed to be contrary to law. 10. The Appellate Court, while exercising its authority, proceeded to allow the additional evidence to be adduced, borrowing principle from civil perception, which cannot be construed to be contrary to law. At the same time it cannot be taken to cause any prejudice to the revisionist/petitioner, as contended in this case, because there are other revealing materials shown in the body of the judgment, taken care of by the Trial Court from the evidence adduced during the trial of this case, requiring adequate address by Appellate Court for taking just decision of this pending appeal. 11. There is hardly any scope for a dramatic change in the tenor of the prosecution already initiated in the event of the additional evidence being collected. Though Appellate Court could have decided the interlocutory application seeking permission to adduce additional evidence along with hearing of this appeal, but, that cannot be taken to be the ground alone to assail the order impugned bearing in mind that the entire exercise of the Court below was to dispel the doubt contained in the body of the judgment by reason of some incidental observation, made by the Trial Court in the judgment, while holding the accused/appellant to be guilty. 12. The revisional application (CRR No. 035 of 2019) is, thus, devoid of any merits requiring interference. 13. The revisional application fails. However, learned Court below is directed to decide the appeal expeditiously as possible, after collecting the additional evidence, preferably within a period of six months from the date of communication of this order to the learned Court below. The petitioner is directed to make communication of this order to the learned Court below. 14. Urgent certified copy of this order, if applied for, be supplied to the parties upon compliance of usual formalities.