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2021 DIGILAW 141 (TRI)

Md. Saha Alam v. Md. Gulam Mustafa

2021-08-26

S.TALAPATRA

body2021
JUDGMENT This is an appeal under Section 378 (4) of the Cr.P.C. against the judgment and order of acquittal dated 29.06.2019 delivered in Case No.CR.(NI) 02 of 2016 by the Chief Judicial Magistrate, Sepahijala, Sonamura. [2] The appellant filed a complaint under Section 138 of the Negotiable Instruments Act, 1881, NI Act in short, when a cheque bearing No.968670 dated 15.09.2018 for the amount of Rs.6,50,000/- [Rupees Six lakhs Fifty thousand] drawn on United Bank of India, Sonamura Branch was dishonoured ‘due to insufficiency of fund.’ The said cheque was sought to be encashed through the State Bank of India, Sonamura Branch. On 21.09.2016, the appellant received the memo of return recording dishonour of the said cheque for insufficiency of fund. Apparently, the appellant followed the statutory ‘requirement’ to institute the complaint under Section 138 of the NI Act. After the substance of accusation was read out to the respondent No.1 under Section 251 of the Cr.P.C. which was denied by the respondent No.1, the appellant led the evidence in support of the accusation. He adduced as many as 4[four] witnesses and introduced 4[four] documents including the original cheque that was dishonoured [Exbt.1], the return memo of the cheque [Exbt.3] and the statutory notice of demand [Exbt.4]. The respondent No.1 did not adduce any evidence. After recording of the evidence, the respondent No.1 was examined under Section 313 (1b) of the Cr.P.C. in respect of the incriminating materials as apparently surfaced in the evidence. The respondent No.1 denied those materials. According to him, he has been implicated falsely. The Chief Judicial Magistrate heard the arguments, purportedly appreciated the evidence and held that the complainant through PWs-2,3 & 4 has insisted that the respondent No.1 borrowed a sum of Rs.6,50,000/- from the complainant [the appellant herein]. The Chief Judicial Magistrate has observed that in their evidence there is not even a whisper as regards the handing over of that huge sum of money in cash. He has further observed that those witnesses did not state directly that the complainant had delivered that cash to the respondent No.1. According to the Chief Judicial Magistrate, this was a serious omission in the complaint itself, since PW-2 ought to have clearly reflected that he delivered and handed over a sum of Rs.6,50,000/- to the accused. For this, the testimony of PWs-2,3 & 4 was considered to have no foundation and cannot be believed. According to the Chief Judicial Magistrate, this was a serious omission in the complaint itself, since PW-2 ought to have clearly reflected that he delivered and handed over a sum of Rs.6,50,000/- to the accused. For this, the testimony of PWs-2,3 & 4 was considered to have no foundation and cannot be believed. Thus, by the judgment dated 29.06.2019, the Chief Judicial Magistrate has further held that the liability to pay has not been proved and thus, the onus did not shift to the respondent No.1 for rebutting the presumption under Section 139 of the NI Act. Even the Chief Judicial Magistrate has observed that there is serious inconsistency between the statements in the complaint and the demand notice [Exbt.4]. In Para-27 of the said judgment dated 29.06.2019, the Chief Judicial Magistrate has observed as follows: 27. Moreover, though PW-1 stated that the cheque was signed by accused person but his testimony has no basis because he was not the eye witness of the signing of the cheque and he was also not present in the bank when it was presented first time. Mere silence of defence in the cross-examination of PW-1 cannot lead to the conclusion that the statement of PW-1 relating to signature in the name of accused on the cheque was admitted by defence. PW-1 is also not a hand-writing expert to conclusively identify the signatory of the cheque. In other words, I hold that the testimony of PW-1 does not convincingly prove the relevant fact that the cheque vide Exbt.1 bears the genuine signature of accused Golam Mustafa. [3] Thereafter, the Chief Judicial Magistrate has further observed that it cannot be held conclusively that Exbt.1 was signed and authored by the respondent No.1 in discharge of his legally enforceable debt and in other words, the cheque bears the genuine signature of the respondent No.1. Having observed thus, it has been finally held that the complainant [the appellant herein] has not been able to prove the accusation of committing offence punishable under Section 138 of the NI Act against the respondent No.1 beyond reasonable shadow of doubt and thus, the respondent No.1 is liable to be acquitted from the said accusation. As stated earlier, the said judgment dated 26.06.2019 has been called in question in this appeal. As stated earlier, the said judgment dated 26.06.2019 has been called in question in this appeal. [4] At the time of reappraising the evidence, this court has come across a specific statement of PW-1, Rohit Kumar, the Branch Manager of United Bank of India, Sonamura Branch. PW-1 has categorically stated as follows: This cheque is of our UBI, Sonamura Branch. The account number vide No.0264010578332 written on the cheque is not in the name of Golam Mostafa who signed the cheque as this account belongs to in the name of wife of Golam Mostafa. This account is a single individual account. It is true that this cheque dated 15.09.2016 was returned by our bank due to insufficiency of fund in the said account of the account holder. [Emphasis added] [5] On the basis of the said statement, this court had projected a preliminary query whether the complaint under Section 138 of the NI Act was maintainable against the respondent No.1. Section 138 of the NI Act deals with dishonour of cheque for insufficiency of fund in the account. It clearly provides that where any cheque drawn by a person on an account maintained by him with a banker for payment of any amount of money to another person from out of that account for the discharge, in whole or in part, of any debt or other liability is returned by the bank unpaid, either because of the amont of money standing to the credit of the account is insufficient to honour the cheque or that it exceeds the amount arranged to be paid from that account by an agreement made with the bank, such person shall be deemed to have committed an offence and shall without prejudice to any other provisions of this Act, be punished with imprisonment for a term which may be extended to 2 years, or with fine which may extent to twice the amount of the cheque or with both. However, it has been succinctly provided that the cognizance will remain subject to compliance of the requites as laid down below the proviso to that Section. Therefore, it is apparent that the cheque as referred in Section 138 of NI Act shall be drawn by a person on an account maintained by him. However, it has been succinctly provided that the cognizance will remain subject to compliance of the requites as laid down below the proviso to that Section. Therefore, it is apparent that the cheque as referred in Section 138 of NI Act shall be drawn by a person on an account maintained by him. PW-1 has categorically stated the single individual account on which the cheque was drawn belonged to the wife of the respondent No.1 and thus, the respondent No.1 did not have any authority to operate the said account by issuing the cheque. In Krishna Janardhan Bhat v. Dattatraya G. Hegde, reported in (2008) 4 SCC 54 , the apex court has clearly observed that the cheque should be drawn from the account of the bank for discharge in whole or in part of any debt or other liability which presupposes a legally enforceable debt and the cheque be drawn by the account holder. [6] Mr. S. Sarkar, learned senior counsel has candidly submitted that that aspect of the matter escaped the notice of the appellant also. Even the Chief Judicial Magistrate did not take a note of that fact which has serious ramification in the case. Mr. Sarkar, learned senior counsel, thereafter made a serious attempt to impress upon the court that the trial Judge [the Chief Judicial Magistrate] ought to have amended the substance of accusation by framing a charge for deception with premeditation to cheat the complainant, but the trial judge has failed to discharge that duty and thus caused miscarriage of justice. In support of this contention, Mr. Sarkar, learned senior counsel has placed his reliance on P. Kartikalakshmi v. Sri Ganesh and another, reported in (2017) 3 SCC 347 , where it has been held by the apex court that it is well settled that the power vested in the court is exclusive to the court and there is no right in any party to seek for such addition or alteration by filing an any application as a matter of right. It may be that if there was an omission in the framing of charge and if it comes to the knowledge of the court trying the offence, the power is always vested in the court as provided under Section 216 of the Cr.P.C to either alter or add to the charge and that such power is available with the court at any time before the judgment is pronounced. It is an enabling provision for the court to exercise its power under certain contingencies which is noticed or is brought to the notice of the court. In such a situation, if it comes to the notice of the court that a necessity has arisen to alter the accusation or the charge, it may do so on its own and no order need to be passed for that purpose. After such alteration or addition when the final decision is rendered, it will be open for the parties to work out their remedies in accordance with law. It has been made further clear in P. Kartikalakshmi (supra) that the power of invocation of Section 216 of the Cr.P.C. is exclusive to the court. No party, neither the de facto complainant nor the accused nor for that matter the prosecution has any vested right to seek any addition or alteration of the charge [read the accusation in the context of this appeal] as it is not provided under Section 216 of the Cr.P.C. [7] Mr. S. Sarkar, learned senior counsel has placed his further reliance on an Orissa High Court decision in Prasanta Kumar Mohapatra v. Nilakantha Rath and Anr., reported in 2000 (1) OLR 294 . In that judgment, the Orissa High Court has approvingly referred the interpretation made in Indramani Pradhan and others v. Chanda Bewa, reported in 1956 Cri.L.J. 1228. It was held in Indramani Pradhan (supra) as under: “…. Though in a summons case there is no formal charge, it is now well settled that the accusation made against the accused and intimated to him during his examination under Section 242 Cr.P.C, takes place of a formal charge. It is also well settled that the proiciples of Section 233 to 239, Cr.P.C, apply not only to warrant cases, but also to summons cases.” [8] Mr. It is also well settled that the proiciples of Section 233 to 239, Cr.P.C, apply not only to warrant cases, but also to summons cases.” [8] Mr. S. Sarkar, learned senior counsel has referred a decision of Calcutta High Court in Dukhiram Bhattacharya v. the State of West Bengal and ors., reported in 2020(213) AIC 337, where it has been observed as follows: 8. From a plain reading of the provision it can be unerringly inferred that the provision is meant to be a surrogate of a charge. In fact, it has been clearly provided that a formal charge need not necessarily be framed in such a case. As a natural corollary, it would follow that even a formal charge could be framed while exercising powers under Section 251 of the Code. 9. "Charge" has been defined in Section 211 of the Code of Criminal Procedure. Section 216 of the Code provides for an alteration of the charge. Sub-section (1) of Section 216 provides that any Court may alter or add to any charge at any time before a judgment is pronounced. Sub-section (2) provides that every such alteration or addition shall be read and explained to the accused. Therefore, if one reads along with these, the provisions contained in Section 251 of the Code that the particulars of an accusation are to be stated to the accused and that a formal charge need not be framed, it can fairly be argued that the provisions under Section 216 shall equally apply to an accusation and/or charge, whichever may be the case, as referred to in Section 251 of the Code. 10. In this context, it is also significant that Chapter XVII of the Code deals with charge, its alteration and the like and not with a particular form of trial while Chapter XX, which contains Section 251, deals with trial of summons-cases by Magistrate. Thus, these provisions are not to be read to the exclusion of each other. Rather, a harmonious reading of the two provisions namely, Sections 216 and 251 of the Code would imply that even if a formal charge was not framed under Section 251 of the Code, any charge could be added in future. Secondly, the concept of alteration of charge need not necessarily be limited to the trial of cases before the Court of Session or the trial of warrant cases by Magistrate. 11. Secondly, the concept of alteration of charge need not necessarily be limited to the trial of cases before the Court of Session or the trial of warrant cases by Magistrate. 11. Therefore, the exercise of inherent powers would not be required to correct an order under Section 251 of the Code. An alteration of charge as envisaged under Section 216 of the Code would equally apply in respect of Section 251 of the Code. [Emphasis added] [9] Mr. S. Sarkar, learned senior counsel has placed his reliance on Central Bureau of Investigation v. Karimullah Osan Khan, reported in (2014) 11 SCC 538 and Anant Prakash Sinha @ Anant Sinha v. State of Haryana and another, reported in (2016) 6 SCC 105 . In Karimullah Osan Khan (supra), the apex court having referred the proposition laid down in Jasvinder Saini v. State [Govt. of NCT of Delhi], reported in (2013) 7 SCC 256 has restated the law that the court’s power to alter or add any charge is unrestrained provided such addition and/or alteration is made before the judgment is pronounced. Sub-sections (2) to (5) of Section 216 deal with the procedure to be followed once the court decides to alter or add any charge. Section 217 of the Code deals with the recall of witnesses when the charge is altered or added by the court after commencement of the trial. There can, in the light of the above, be no doubt about the competence of the court to add or alter a charge at any time before the judgment. The circumstances in which such addition or alteration may be made are not, however, stipulated in Section 216. It is all the same trite that the question of any such addition or alternation would generally arise either because the court finds the charge, already framed, to be defective for any reason or because such addition is considered necessary after the commencement of the trial having regard to the evidence that may come before the court. [10] It has been also observed quite categorically as under: Needless to say, the Courts can exercise the power of addition or modification of charges under Section 216 Cr.PC, only when there exists some material before the Court, which has some connection or link with the charges sought to be amended, added or modified. [10] It has been also observed quite categorically as under: Needless to say, the Courts can exercise the power of addition or modification of charges under Section 216 Cr.PC, only when there exists some material before the Court, which has some connection or link with the charges sought to be amended, added or modified. In other words, alteration or addition of a charge must be for an offence made out by the evidence recorded during the course of trial before the Court. [11] In Anant Prakash Sinha (supra), the apex court has restated the law as laid down in Harihar Chakraborty v. State of West Bengal, reported in AIR 1954 SC 266 . In Harihar Chakraborty (supra) the apex court had occasion to observe as follows: 9. Next as regards the direction to alter the charge so as to include an offence for which the appellant was not originally charged, that could only be done if the trial court itself had taken action under Section 227 of the Criminal Procedure Code before it pronounced judgment. It could only have done so if there were materials before it either in the complaint or in the evidence to justify such action. 10. The complaint affords no material for any such case because it is based on the allegation that the shares did not belong to the complainant and that in fact they were never purchased. The learned Judge observed that the contention was that the shares belonged to the complainant and were dishonestly pledged by the appellant with the Nath Bank. We do not find even a word about this either in the complaint or in the examination of the complainant. [Emphasis added] [12] In Anant Prakash Sinha (supra), the apex court had been descriptive about the circumstances when the court may exercise its power conferred under Section 216 of the Cr.P.C. It has been observed as follows: 17. In Thakur Shah v. King Emperor: AIR 1943 PC 192 , what the Court has held is that alteration or addition of a charge must be for an offence made out by the evidence recorded during the course of trial before the court. It does not necessarily mean that the alteration can be done only in a case where evidence is adduced. It does not necessarily mean that the alteration can be done only in a case where evidence is adduced. We may hasten to clarify that there has been a reference to the decision rendered in Harihar Chakravarty (supra) but the said reference has to be understood in the context. Section 216 CrPC, as is evincible, does not lay down that the court cannot alter the charge solely because it has framed the charge. In Hasanbhai Valibhai Qureshi (supra), it has been stated there is scope for alteration of the charge during trial on the basis of material brought on record. In Jasvinder Saini and others (supra), it has been held that circumstances in which addition or alteration of charge can be made have been stipulated in Section 216 CrPC and sub-sections (2) to (5) of Section 216 CrPC deal with the procedure to be followed once the court decides to alter or add any charge. It has been laid down therein that the question of any such addition or alteration generally arise either because the court finds the charge already framed to be defective for any reason or because such addition is considered necessary after the commencement of the trial having regard to the evidence that may come before the court. If the said decision is appositely understood, it clearly lays down the principle which is in consonance with Harihar Chakravarty (supra). 18. From the aforesaid, it is graphic that the court can change or alter the charge if there is defect or something is left out. The test is, it must be founded on the material available on record. It can be on the basis of the complaint or the FIR or accompanying documents or the material brought on record during the course of trial. It can also be done at any time before pronouncement of judgment. It is not necessary to advert to each and every circumstance. Suffice it to say, if the court has not framed a charge despite the material on record, it has the jurisdiction to add a charge. Similarly, it has the authority to alter the charge. The principle that has to be kept in mind is that the charge so framed by the Magistrate is in accord with the materials produced before him or if subsequent evidence comes on record. Similarly, it has the authority to alter the charge. The principle that has to be kept in mind is that the charge so framed by the Magistrate is in accord with the materials produced before him or if subsequent evidence comes on record. It is not to be understood that unless evidence has been let in, charges already framed cannot be altered, for that is not the purport of Section 216 Cr.P.C. [Emphasis added] [13] A few more reports have been placed for reference but those are even not remotely relevant for the question that this court is examining and hence, no reference is made to those reports. [14] Mr. D. Datta, learned counsel appearing for the respondent No.1 has submitted that the effort of Mr. Sarkar, learned senior counsel appearing for the appellant is bound to fail inasmuch as neither in the complaint nor in the statement made in the trial, the appellant as the complainant had stated any offence other than the offence under Section 138 of the Cr.P.C. Mr. Datta, learned counsel has referred a decision of the apex court in Jugesh Sehgal v. Shamsher Singh Gogi, reported in (2009) 14 SCC 683 , where it has been held almost in the similar circumstances that it is manifest that to constitute an offence under Section 138 of the N.I. Act, one of the ingredients which are required to be fulfilled is that a person must have drawn a cheque on an account maintained by him in a bank for certain amount of money and issued the same to another person [see Para-13]. It has been further observed in Jugesh Sehgal (supra) as follows: As already noted hereinbefore, in para 3 of the complaint, there is a clear averment that the cheque in question was issued from an account which was non-existent on the day it was issued or that the account from where the cheque was issued "pertained to someone else". As per complainant's own pleadings, the bank account from where the cheque had been issued, was not held in the name of the appellant and therefore, one of the requisite ingredients of Section 138 of the Act was not satisfied. Under the circumstances, continuance of further proceedings in the complaint under Section 138 of the Act against the appellant, would be an abuse of the process of the Court. Under the circumstances, continuance of further proceedings in the complaint under Section 138 of the Act against the appellant, would be an abuse of the process of the Court. In our judgment, therefore, the decision of the High Court cannot be sustained. [15] Thus, Mr. Datta, learned counsel has submitted that since the cheque was issued from the account pertaining to someone else, one of the requisite ingredients of Section 138 of the NI Act was not satisfied. The entire process of trial was an abuse. [16] Mr. S. Debnath, learned Addl. PP appearing for the respondent No.2 [the State of Tripura] has contended that the findings returned by the Chief Judicial Magistrate in respect of the legally enforceable debt or proof of signature on the cheque etc. are wholly unwarranted as the prosecution under Section 138 of the NI Act was not maintainable, inasmuch as, according to the banker [PW-1] the cheque was not drawn on any account maintained by the respondent No.1. The account on which the cheque was drawn is maintained by the wife of the respondent No.1. The account is individual account. Except the account holder, nobody is permitted to operate the said account. Thus, the acquittal cannot be questioned but for the reasons not discussed by the trial judge, the acquittal cannot be interfered with for the reason that the prosecution was unsustainable. Mr. Debnath, learned Addl. PP has further contended that no materials were available either in the complaint nor in the statement of the complainant i.e. PW-2. There is no whisper in respect of the fact that the cheque that was allegedly drawn and was returned as dishonoured for insufficiency of the fund was not drawn on the account of the respondent No.1. The cheque was allegedly issued by the respondent No.1. Therefore, for absence of the basic ingredients as pointed out in Jugesh Sehgal (supra), this appeal be dismissed. [17] Having appreciated the submission in the different context as emerged from the testimony of PW-1, this court does not find any reason to interfere with the judgment and order of acquittal as challenged in this appeal inasmuch as the prosecution was not maintainable as the cheque concerned, was not issued from the account of the respondent No.1. As stated by PW-1, the said account stood in the name of his wife. As stated by PW-1, the said account stood in the name of his wife. The account was single individual account and as such, the respondent No.1 did not have any authority to issue cheque on that account. The law in this regard has been crystallized and hence, there cannot be any hesitation to hold that the prosecution against the respondent No.1 was unsustainable and hence, on that ground alone, the order of acquittal be maintained. [18] The alternative argument as projected by Mr. Sakar, learned senior counsel cannot be sustained inasmuch as neither in the complaint nor in the statement made by the appellant [PW-2] there is any revelation or disclosure of any other offence such as of deception as indicated. The decisions as referred by Mr. Sarkar, learned senior counsel cannot salvage the appellant inasmuch as the apex court has consistently held since the days of Harihar Chakraborty (supra) that unless there is adequate materials before the court, even if the court has power to alter or amend the charge including the substance of accusation, the court shall not alter or amend the charge. [19] Having observed thus, this court does not find any merit in this appeal. Accordingly, the same stands dismissed. Send down the LCRs forthwith.