Tapan Kumar Ghosh vs Gopal Chandra Maity & Anr
2021 Latest Caselaw 6359 Cal

                 IN THE HIGH COURT AT CALCUTTA

                  Criminal Revisional Jurisdiction



Before:

The Hon'ble Mr. Justice Ananda Kumar Mukherjee


                          C.R.R. 2752 of 2019
                        Tapan Kumar Ghosh
                               Vs.
                       Gopal Chandra Maity & Anr.



For the Opposite Party No 1 :        Mrs. Sudipa Banerjee
                                     Ms. Sneha Dutta

Heard on:                            08.12.2021


Judgement delivered on:               15.12.2021




Ananda Kumar Mukherjee, J. :-

1.

Instant Criminal Revision has been filed by the petitioner being

aggrieved and dissatisfied with the judgement and order passed by the

learned Additional District and Sessions Judge, Fast Track Court-II,

Contai, District-Purba Medinipur in Criminal Appeal No.3 of 2019,

wherein the petitioner's appeal was dismissed on contest and the

impugned order dated 7.12.2018 passed by the learned Judicial

Magistrate, 1st Court, Contai, Purba Medinipur in C.R case No.198 of

2015 was affirmed. In the impugned judgement. Learned Additional

Sessions Judge, FTC-II, Contai directed the complainant/petitioner to

surrender before the learned trial court within 10 days from date of the

judgment.

2. In his application for criminal revision the petitioner urged that the

judgement and order passed in the Criminal Appeal No.3 of 2019 is bad

in law, illegal and the same is not sustainable in the eye of law. It is

further contended that while passing the judgement the court ought to

have scrutinized the source of Rs.3,50,000/- alleged to have been paid

by the complainant/opposite party no.1 to the accused/petitioners as

loan accommodation. It is also urged that learned Judicial Magistrate

had erred in law in convicting the petitioner and subjecting him to

simple imprisonment for three months, with a further direction to pay a

compensation of Rs.7,00,000/- to the complainant/opposite party no.1

under Section 357(3) of the Code of Criminal Procedure. The petitioner

prayed for setting aside the impugned order and/or quashing of the

order.

3. On 8.11.2019 the petitioner/revisionist had prayed for his release on

bail. After considering the submission the petitioner was granted

interim bail till 22.11.2019 on condition that he deposited

Rs.3,50,000/- before the learned trial court within the said period. The

opposite party no.1 was given liberty to withdraw the said amount

complying all formalities before the trial court. The petitioner appeared

on consecutive dates when the matter was fixed for hearing. On

conspectus of the facts and circumstances and the situation arising out

of non-representation of the petitioner, the criminal revision is taken up

for hearing at the behest of the opposite party no.1. It is worthwhile to

note that opposite party no.2/State has not been represented as the

case initiated out of a private complaint.

4. Learned advocate for the opposite party no.1 referred to the judgement

and order passed by the learned Judicial Magistrate in C.R Case No.

198 of 2015 under Section 138 of the Negotiable Instruments Act giving

rise to Criminal Appeal No 3 of 2019 and submitted that by consecutive

judgments the petitioner has been found guilty of the offence and was

convicted and sentenced thereof. The fact of the case as it appears from

the petition of complaint of opposite party no.1 is that a loan

accommodation of Rs. 3,50,000/- was given to the petitioner/accused

Tapan Kumar Ghosh on account of his daughter's marriage. The

petitioner in discharge of his debt issued a cheque dated 30.3.2015 in

favour of the opposite party no.1 drawn, on Mugberia Central Co-

operative Bank, Kalagachia Branch. The complainant presented the

said cheque in his own account at the State Bank of India, Kalagachia

Branch but the same was dishonoured due to insufficient fund. The

Branch issued an information slip dated 6.4.2015 informing the

opposite party no.1/complainant about the reason of dishonour. The

petitioner was informed about the dishonor of the cheque and he

requested the opposite party no. 1 to present the cheque once again.

On such assurance the opposite party no.1 deposited the cheque again

on 23.6.2015 in his account but the same was dishonoured for the

second time due to insufficient fund. A demand notice was issued to

the petitioner under registered post on 2.7.2015 which was received by

the petitioner on 07.07.2015. The petitioner/accused neither replied to

the notice nor made any payment within the prescribed period. The

cause of action arose on 10.08.2015 and the opposite party no.1 lodged

the complaint against the petitioner under Section 138 of the

Negotiable Instruments Act, 1881.

5. Learned Magistrate having examined Gopal Chandra Maity, the

complainant as PW-1 and Subbhash Chandra Manna, Branch Manager

of the petitioner's Bank as PW-2 and on admitting several documents in

evidence as Exhibit-1 to Exhibit-14 has passed the judgment dated

07.12.2018, whereby the petitioner was found guilty of the offences

punishable under Section 138 of the Negotiable Instruments Act and

convicted him under Section 255(2) of the Code of Criminal Procedure.

6. In the case the petitioner has been sentenced to simple imprisonment

for three months and was directed to pay compensation of Rs.

7,00,000/- to the complainant/opposite party no.1 which was made

recoverable as fine. The petitioner preferred an appeal bearing Criminal

Appeal No.3 of 2019, which has been disposed of by the learned

Additional Sessions Judge, FTC, Contai, Purba Medinipur by his

judgment and order dated 3.9.2019, wherein the impugned judgement

and order dated 7.12.2018 passed by the learned Judicial Magistrate,

1st Court, Contai, Purba Medinipur in C.R Case No. 198 of 2015 has

been affirmed. The convict was directed to surrender before the learned

trial court within 10 days from the date of passing of the judgment.

After some time the petitioner's Advocate stopped appearing and no

further step has been taken on behalf of the petitioner.

7. Learned advocate for the opposite party no.1 submitted that the

impugned Judgment and order suffers from no illegality or impropriety

and there is no reason for interfering with the consecutive finding of the

courts against the accused. It is urged that criminal revision is without

merit and is liable to be dismissed.

8. Having perused the impugned judgment and the trial court orders and

on considering the submission of Learned Advocate for opposite party

no. 1, I find that the petitioner/accused did not adduce any evidence on

his behalf. The presumption raised against the petitioner/accused

person under Section 139 of the Negotiable Instruments Act, that the

cheque was issued by the petitioner and received by opposite party no.

1 for discharge of petitioner's debts to the complainant/opposite party

no.1, has not been rebutted in the instant case. The cheque bearing the

signature of the petitioner and drawn on Mughberia Central

Cooperative Bank Limited being cheque No.1551 dated 30.03.2015 has

been produce as exhibit-1.

9. On a perusal of the evidence on record, I find that the learned

Magistrate was abrest of the essential evidence that the cheque issued

by the petitioners was dishonored and on demand by notice the drawer

failed to make payment. Therefore the learned Judicial Magistrate

committed no error in finding the accused/ petitioner guilty of the

offence punishable under section 138 of the Negotiable Instrument Act.

10. The learned Additional Sessions Judge, FTC-II, Contai in Criminal

Appeal has affirmed the judgment of learned Judicial Magistrate as he

did not find any illegality.

11. In my considered view the petitioner having issued the cheque in

question is liable for non-clearance of the same and non-payment of the

dues to opposite party no.1. To ensure due payment to the drawee of a

cheque, the court trying the offence is empowered under section 138 of

the Negotiable Instrument Act to impose a sentence of imprisonment

which may extend to two years or with fine, which may extend to twice

the cheque amount or both. Therefore, I find no illegality in the

impugned judgment where a substantive sentence of three months of

imprisonment as well as a compensation twice the cheque amount has

been awarded in favour of the opposite party no.1, against the

petitioner.

12. In view of the above discussion I find the impugned judgment in

Criminal Appeal No. 3 of 2019 passed by Learned Additional District

and Sessions Judge, F.T.C. II, Contai suffers from no illegality,

impropriety or any incorrectness. Therefore, I hold that there is no

merit in the criminal revision filed by the petitioner and the same is

dismissed. The criminal revision is accordingly disposed of on its merit,

considering the facts and legal provisions. Interim order if any stands

vacated.

13. Let a copy of this judgement be transmitted to the First Court of

learned Judicial Magistrate, Contai, Purba Medinipur for information

and execution of the sentence. Another copy of this judgment be sent to

the court of Learned Additional Sessions Judge, 2 nd F.T.C Contai,

Purba Medinipur for information.

14. Urgent photostat certified copy of this order may be supplied to the

parties expeditiously, if applied for.

(Ananda Kumar Mukherjee, J.)

BM