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Tripura High Court · body

2022 DIGILAW 113 (TRI)

Manik Lal Das v. Badal Ch. Dey

2022-03-10

T.AMARNATH GOUD

body2022
JUDGMENT 1. This instant criminal revision petition has been filed under Section 397 read with Section 401 of the Code of Criminal Procedure, 1973, against the impugned judgment dated 04.12.2017 passed by the learned Addl. Sessions Judge, Gomati Judicial District, Udaipur, in Case No. Criminal Appeal No.08(01) of 2017, whereby, the learned Appellate Court (learned Addl. Sessions Judge, Gomati Judicial District, Udaipur) upheld the conviction and sentence dated 19.12.2016 passed by the learned Chief Judicial Magistrate, Gomati Judicial District, Udaipur, in C.R. (N.I) 01 of 2016, whereby, the learned Chief Judicial Magistrate, Gomati Judicial District, Udaipur, convicted the petitioner for committing an offense punishable under Section 138 of the Negotiable Instrument Act, 1881, and sentenced him to suffer rigorous imprisonment for 1(one) year and to pay a fine of Rs.3,00,000/- and with default stipulation. 2. The brief facts of the prosecution case are that respondent No.1 as complainant, filed a complaint before the learned Chief Judicial Magistrate, Gomati Judicial District, Udaipur, alleging inter alia that respondent No.1 had a good relationship with the petitioner, and they were conversant with each other for one and half year and had monitory transaction between them in respect of the business. Respondent No.1 has been carrying coal from Meghalaya and supplying the same to the Brickfield of the petitioner, namely, M/S Joy Ram Industry. For payment of the cost of coal, the petitioner issued a cheque bearing No.185505 on 25.11.2015 in favour of respondent No.1 for discharging his debt and liability for Rs.1,50,000/- drawn on SBI, Belonia, Branch Belonia, South Tripura. On 01.12.2015, respondent No.1 deposited the said cheque in his account No.0462010023515 at UBI, Udaipur Branch, for encashment, but on 02.02.2015 the said cheque was returned due to insufficient funds. Thereafter, on 07.12.2015, the respondent No.1 issued a Demand Notice to the petitioner. But, the petitioner did not pay the money. Hence, he lodged the complaint against the petitioner before the learned Chief Judicial Magistrate, Gomati Judicial District, Udaipur, and the same was registered and marked as C.R.(N.I) No. 01 of 2016. 3. On receipt of the aforesaid complaint, learned Chief Judicial Magistrate, Gomati Judicial District, Udaipur took cognizance and issued summons upon the petitioner. In furtherance of the summons, the petitioner appeared before the learned Chief Judicial Magistrate, Gomati Judicial District, Udaipur, and pleaded not guilty. 4. To prove the case, the complainant side examined as many as 3(three) witnesses. 3. On receipt of the aforesaid complaint, learned Chief Judicial Magistrate, Gomati Judicial District, Udaipur took cognizance and issued summons upon the petitioner. In furtherance of the summons, the petitioner appeared before the learned Chief Judicial Magistrate, Gomati Judicial District, Udaipur, and pleaded not guilty. 4. To prove the case, the complainant side examined as many as 3(three) witnesses. On the other hand, the petitioner adduced himself as a defense witness. After examination of the witnesses, and hearing both the parties, learned Chief Judicial Magistrate, Gomati Judicial District, Udaipur vide Judgment dated 19.12.2016, convicted the petitioner for committing an offense punishable under Section 138 of Negotiable instrument Act, 1881 (N.I. act for short), and sentence him to suffer rigorous imprisonment of 1 year and to pay a fine of Rs.3,00,000/- and in default of payment of fine, to suffer further period of 6(six) months rigorous imprisonment, for committing of an offense punishable under Section 138 of N.I. Act. 5. Being aggrieved and dissatisfied with the judgment of conviction and sentence dated 19.12.2016 passed by the learned Chief Judicial Magistrate, Gomati Judicial District, Udaipur, in C.R. (N.I) of 01 of 2016, the petitioner preferred an appeal before the learned Sessions Judge, Gomati Judicial District, Udaipur. The said appeal was registered as Criminal Appeal No.08(1) of 2017. The same was transferred before the learned Addl. Sessions Judge, Gomati Judicial District, Udaipur for disposal. After hearing both the parties, the learned Appellate Court vide impugned judgment dated 04.12.2017 dismissed the appeal. 6. Being aggrieved by the impugned judgment dated 04.12.2017, passed by the learned Addl. The said appeal was registered as Criminal Appeal No.08(1) of 2017. The same was transferred before the learned Addl. Sessions Judge, Gomati Judicial District, Udaipur for disposal. After hearing both the parties, the learned Appellate Court vide impugned judgment dated 04.12.2017 dismissed the appeal. 6. Being aggrieved by the impugned judgment dated 04.12.2017, passed by the learned Addl. Sessions Judge, Gomati Judicial District, Udaipur, in Criminal Appeal No.08(1) of 2017, the petitioner herein preferred the instant criminal revision petition and prayed for the following reliefs:- 'Issue a Rule calling upon the respondents to show cause as to why the impugned Judgment dated 04.12.2017 passed by the learned Additional Sessions Judge, Gomati Judicial District, Udaipur, in Case No. Criminal Appeal 08(01) of 2017, whereby the learned Appellate Court (learned Additional Sessions Judge, Gomati Judicial District, Udaipur) upholding the conviction & sentence dated 19.12.2016, passed by the learned Chief Judicial Magistrate, Gomati Judicial District, Udaipur, in C.R.(N.I) 01 of 2016, whereby learned Chief Judicial Magistrate, Gomati Judicial District, Udaipur, convicted the petitioner for committing offence punishable under Section 138 of the Negotiable Instruments Act, 1881, sentenced him to suffer Rigorous imprisonment of 1(one) year and to pay a fine of Rs.3,00,000/- (Rupees three Lac) and in default of payment of fine, he should suffer further period of 6(six) months rigorous imprisonment, shall not be quashed/set aside, and acquit the petitioner. ii) Call for the records appertaining to this petition; iii) In the interim an order staying/suspending the operation of the impugned sentence passed in judgment dated 19.12.2016 by the learned Chief Judicial Magistrate, Gomati Judicial District, Udaipur, in C.R.(N.I.) 01 of 2016, whereby learned Chief Judicial Magistrate, Gomati Judicial District, Udaipur, convicted the petitioner for committing offence punishable under Section 138 of the Negotiable instrument Act, 1881, sentenced him to suffer rigorous imprisonment of 1(one) year and to pay a fine of Rs.3,00,000/-(Rupees three lac) and in default of payment of fine, he should suffer further period of 6(six) months rigorous imprisonment, which was upheld by the learned Additional Sessions Judge, Gomati Judicial District, Udaipur, in its impugned Judgment dated 04.12.2017 passed in Case No. Criminal Appeal 08(01) of 2007 till disposal of the instant criminal revision petition.' 7. Heard Mr. J. Bhattacharjee, learned counsel appearing for the petitioner as well as Mr. A. Acharjee learned counsel for respondent No.1, and Mr. R. Datta learned P.P. appearing for respondent No.2. 8. Heard Mr. J. Bhattacharjee, learned counsel appearing for the petitioner as well as Mr. A. Acharjee learned counsel for respondent No.1, and Mr. R. Datta learned P.P. appearing for respondent No.2. 8. On the point of proof of service, Mr. Bhattachajee, learned counsel appearing for the petitioner has relied on the notice, postal receipt, acknowledgment card, and the postal track information, wherein, it is categorically signed as Laxmi Saha Das and Lakshmi Saha (Das). In view of the disputed question of facts with regard to the very service of the notice on the wife of the accused person, this Court is not in a position to appreciate the evidence since the same has been already been examined by the Trial Court and reasonable findings have been given with regard to the effective service. 9. Mr. Bhattacharjee, learned counsel appearing for the petitioner has further placed reliance upon the judgment passed by the Apex Court in M.D. Thomas v. P.S. Jaleel and anr., reported in (2009) 14 SCC 398 to say that the service on the wife is not equal to service on the husband/addressee. 10. This Court has no hesitation to say that the above-mentioned judgment, M.D. Thomas (supra) is not related to the facts of the instant case since the very service itself on the person has been denied on the strength of the signature. It is verified from the record that even in the evidence before the Court below, the P.W.1 has not been put to cross-examination with regard to the postal acknowledgment and the signatures made therein with regard to the receipt of the legal notice. Further, there was no specific question by way of the cross with regard to the point of legally enforceable debt. Since the petitioner herein has failed to make out his case before the Courts below, this Court has no hesitation to say that in the revision, appreciation of the factual issues is not permissible. 11. Accordingly, the instant revision petition is dismissed confirming the orders dated 04.12.2017 passed by learned Additional Sessions Judge, Gomati Judicial District, Udaipur in case No. Criminal Appeal No. 08(01) of 2017 upholding the conviction and sentence dated 19.12.2016 passed by the learned Chief Judicial Magistrate in Gomati Judicial District, Udaipur, in C.R.(N.I.) 01 of 2016.