Sri Hari Prasad Pal vs Sri Asit Kumar Mondal & Anr
2021 Latest Caselaw 5638 Cal

                  IN THE HIGH COURT AT CALCUTTA
                 CRIMINAL REVISIONAL JURISDICTION
                          APPELLATE SIDE


PRESENT:

THE HON'BLE JUSTICE TIRTHANKAR GHOSH


                              CRA 756 of 2015

                          Sri Hari Prasad Pal
                                  -vs.-
                     Sri Asit Kumar Mondal & Anr.


For the Appellant                :      Mr. Debasish Roy,
                                        Mr. Navanil De,
                                        Ms. Mayukhi Mitra


For the Respondent No.1          :      Mr. Ayan Bhattacherjee,

Mr. Sharequl Haque

Heard on : 12.03.2021, 08.04.2021, 30.04.2021, 20.07.2021 & 22.07.2021

Judgment on : 10.11.2021

Tirthankar Ghosh, J:-

The present appeal has been preferred against the judgment and order

of acquittal dated 31.08.2015 passed by the learned Additional Sessions

Judge, Bolpur, Birbhum, in connection with Criminal Appeal No. 3 of 2015,

wherein the learned appellate Court was pleased to acquit the

accused/respondent from the charge under Section 138 of the Negotiable

Instrument Act (hereinafter referred to as ―N.I. Act‖), setting aside the order

of learned ACJM, Bolpur, convicting the accused/respondent.

The grievance of the present appellant is that he filed a complaint case

being case No. 136 of 2009 before the learned Additional Chief Judicial

Magistrate, Bolpur, Birbhum wherein after appreciation of the evidence of

the case the learned Magistrate was pleased to convict the

accused/respondent under Section 138 of the N.I. Act and sentenced him to

suffer simple imprisonment for one year and also pay fine of Rs.7,00,000/-

within ten days following which the accused/respondent was directed to

suffer simple imprisonment for another one year.

The genesis of the case related to a complaint under Section 138 of

the N.I. Act filed by the appellant herein before the learned ACJM, Bolpur.

The allegation made in the complaint were to the effect that the

complainant/appellant advanced a loan of rupees seven lakh to the accused

who after obtaining the same by representing his financial crisis and in

discharge of repayment of the said loan issued a cheque bearing no. 732538

dated 06.06.2009 amounting to Rs.7,00,000/- in favour of the complainant

which was drawn at Vijaya Bank, Kankalitala Branch, Bolpur. The appellant

presented the cheque for collection with the State Bank of India, Harinagar

(HAN), Delhi (New Delhi) Branch but the same was dishonoured with the

bank endorsement ―account closed‖. The bank return memo dated

10.06.2009 of the State Bank of India reflected such endorsement. On

06.07.2009 the complainant send demand notice to the accused by

registered post with AD through his learned lawyer thereby claiming the

payment of the dishonoured cheque and the same was send to the

permanent address of the accused at Bolpur as well as temporary address at

New Delhi. The registered envelope along with AD which was sent to the

permanent address at Bolpur, returned with the postal endorsement dated

23.07.2009, however, the other demand notice which was sent to New Delhi

did not return till the date of filing of the complaint. The complainant,

therefore, alleges in spite of having knowledge regarding the dishonor of the

cheque the accused failed to make any payment within the statutory period

provided in the notice and as such committed the offence under Section 138

of N.I. Act.

The learned Magistrate on receipt of such complaint by an order dated

10.08.2009 was pleased to take cognizance of the offence and on compliance

of necessary procedures, was pleased to issue process against the

accused/respondent. Pursuant to receipt of the summons the accused

appeared before the Court on 31.12.2009 when he was released on bail.

Subsequently by an order dated 12.08.2011, the substance of the

accusation was read over to the accused/respondent under Section 251 of

Code of Criminal Procedure to which he pleaded not guilty and claimed to be

tried.

The trial Court records reflected that the prosecution in order to prove

its case examined two witnesses namely, the complainant and one Subasish

Ghosh as PW2. The prosecution also relied upon five documents which were

marked as Exhibits being Ext.1 cheque bearing No. 732538 dated

06.06.2009 of Rs. 7 lac.; Ext.2, dishonor memo; Ext.3, demand notice;

Ext.4, postal receipt and Ext.5, envelope along with A/D card.

The defence examined one Debobrata Halder as DW1 and relied upon

two documents being Ext.A, Statement of accounts of M/S Mondal

Handicrafts and Ext.B, certified copy of statement of accounts.

The evidence of the complainant reflects that so far as the time period

required for preferring a complaint under Section 138 of N.I. Act as has been

prescribed in the statute has been complied with. The only issue which by

way of cross-examination has been repeatedly confronted by the accused

was manner in which the loan has been advanced and whether there has

been compliance with the loss relating to the Income Tax Act.

Surprisingly, a specific question was put in cross-examination on

behalf of the accused "I put it to you that the instant cheque was issued upon

a closed Account?". The very nature of the question which was advanced on

behalf of the defence would go to show the issuance of the cheque was never

disputed.

PW2 is nephew of PW1 who has only corroborated the PW1 to the

limited extent that he had knowledge that the accused had taken loan from

the complainant and for repayment of the said loan a cheque of rupees

seven lakhs was issued.

The accused was examined under Section 313 of the Code of Criminal

Procedure. The accused in his examination under Section 313 Cr.P.C.

denied taking any loan and also claimed his innocence. Moreover, he denied

having received any notice pursuant to the cheque being dishonoured. In

support of his case the accused tendered one Debobrata Halder, a Clerk,

attached to Vijaya Bank, Kankalitala Branch who produced the statement of

accounts which was marked as Ext.A and the certified copy of the statement

of accounts of Mondal Handicrafts belonging to the accused/respondent

which was marked as Ext.B. The learned Magistrate after considering the

evidence adduced on behalf of the prosecution as well as defence and on an

appreciation of the presumptions as provided under the statute was pleased

to hold the accused guilty and thereafter, sentenced him as aforesaid. The

accused/respondent being aggrieved by such judgment and order passed by

the learned ACJM, Bolpur approached the learned Additional Sessions

Judge, Bolpur, Birbhum. The learned Sessions, Judge appreciated the

evidence which was adduced by both the parties and acquitted the appellant

mainly on the fact that the prosecution has failed to prove the issue of debt

or liability and there has been non-compliance of evidence relating to

Income Tax Act and on the notice which was marked as exhibit in the

Appeal Court wherein it was stated regarding misuse of his lost cheque and

as such he informed the same on 21.05.2009 as he lost the cheque book on

transit on 20.05.2009.

Mr. Debasish Roy, learned Advocate appearing on behalf of the

appellant criticized the judgment of the learned Appellate Court by rebutting

the contentions raised by the accused/respondent to the effect that an

Appeal Court should be slow while interfering with an order of acquittal. The

learned lawyer stressed on the issue relating to Section 118 and Section 139

of the N.I. Act and submitted that the Appeal Court made out a new case

which was not before the trial Court and erroneously arrived at his finding

of acquittal against the evidence adduced before the trial Court. The

appellant relied upon the following decisions: Chandrappa and Ors. -Vs.

State of Karnataka, (2007) 4 SCC 415; P. Venugopal -Vs. - Madan P.

Sarathi, (2009) 1 SCC 492; Hiten P. Dalal -Vs. - Bratindranath Banerjee,

(2001) 6 SCC 16 and Rangappa -Vs. - Sri Mohan, (2010) 11 SCC 441.

Mr. Bhattacharya, learned advocate appearing for the

accused/respondent primarily stressed on the issue of scope of appeal

against the order of acquittal; the quality of evidence which the prosecution

has adduced and how much of the presumption under Section 139 of the

N.I. Act would aid the complainant for proving the case. Learned advocate

also emphasised that the complainant has failed to substantiate any legal

and enforceable debt or liability to bring the case within the ambit of the

provisions of the Negotiable Instrument Act. Additionally the learned

advocate addressed the Court that the imposition of fine was beyond the

jurisdiction of the learned trial Court and the default sentence was contrary

to the establish principles of law. The learned advocate relied upon the

following judgments: Dhanapal -Vs. - State by Public Prosecutor Madras,

(2009) 10 SCC 401 [Para 39/41]; Vijay -Vs. - Laxman, (2013) 3 SCC 86

[Para 2/3/9/11/12/13/15/20 to 27]; Basaingappa - Vs. - Mudibasappa,

(2019) 5 SCC 418 [Para 6/25/26/29 to 33]; Krishna Janardhan Bhat -Vs.

- Dattaraya G. Hegde, (2008) 4 SCC 54 [Para 25/38/44]; Snajay Mishra -

Vs. - Kanishka Kapoor @ Nikki, 2009 Cri L J 3777 (Bom) [Para 13];

Gherulal Parakh -Vs. - Mahadeodas Maiya & Ors, AIR 1959 SC 718 [Para 8

at pg 786]; Venkatesh Sadanand Pai -Vs. - Mrs. Kanchan A. Kakodhar &

Anr.,2016 CR L J 1267 (Bom) [Para 11/12]; M/s Spring Fields Financial

Services Ltd. -Vs. - State of AP & Anr., 2006 Cr. LJ 2090 (AP) [Para 18/23

to 27]; G. Pankajashi Amma & Ors. -Vs. - Mathai Mathew, (2004) 12 SCC

83 [Para 10] and R. Ramaraj -Vs. - R. Kuppusamy, 2012 (3) Madras Weekly

Notes (Criminal) (DCC) 68 [Para 9/10/11].

In Dhanapal (supra) it has been observed in paragraph 21 that :

"21. ...It is a well-settled legal position that when the view which has been taken by the trial court is a possible view, then the acquittal cannot be set aside by merely substituting its reasons by the High Court..."

The case referred to above and relied upon by the learned advocate

appearing for the respondent was under Section 307/302 read with Section

34 of the Indian Penal Code. The Hon'ble Supreme Court considered the

facts of the case, the evidence of each of the witnesses and on an

appreciation of the same arrived at a finding. The proposition referred to by

the learned advocate is a settled proposition of law but the same has to be

considered in the background of the provisions of the Negotiable

Instruments Act.

In Vijay (supra) the Hon'ble Apex Court was of the view that there was

a glaring loophole in the case of the complainant who failed to establish that

the cheque was issued towards repayment of personal loan. Further, the

Hon'ble Supreme Court relied upon a factual circumstance adduced in the

case that there was an altercation between the complainant/dairy owner

and the respondent/accused for which a case was also lodged against the

complainant's father and in the said background the plea of the

complainant in respect of the debt or liability was seriously doubtful.

In Basaingappa (supra) the law laid down was on a different factual

circumstance, the cross-examination of PW1 was taken in to consideration

and on a specific question it was answered that he does not remember

whether the cheque was issued in relation to any loan or not.

In Krishna Janardhan Bhat (supra) it has been subsequently held

that certain observations made in the said judgment are restricted to the

facts of the said case and the facts of the case also reveal that there was a

competition in respect of the same nature of business which was run by the

parties and on the said foundation an inference was drawn and thereafter

the law was applied.

In Rangappa -Vs.- Sri Mohan reported in (2010) 11 SCC 441, question

was raised regarding the existence of the legally recoverable debt based on

the judgment of Krishna Janardhan Bhat. The Supreme Court after relying

upon the judgment of Hiten P. Dalal -Vs.- Bratindranath Banerjee,

Mallavarapu Kasivisweswara Rao -Vs.- Thadikonda Ramulu Firm, M.M.T.C.

Ltd. -Vs.- Medchl Chemical & Pharma (P) Ltd. was of the opinion that the

presumption mandated by Section 139 of the Act do include the existence of

a legally enforceable debt or liability and thereafter observed that, to that

extent the observations of Krishna Janardhan Bhat may not be correct. In

the same breath, the Hon'ble Supreme Court observed that the judgment of

Krishna Janardhan Bhat was based on facts and circumstances of the said

case.

Further the judgment delivered by the Learned Judicial Magistrate

reflects that the learned Magistrate took into account the statutory

requirements so far as time period is concerned under the provisions of N.I.

Act, the issue relating to service of notice and the legislative intent so far as

the provisions of Section 138 to Section 142 of the N.I. Act are concerned.

The Learned Magistrate was convinced that the complainant has been

able to prove the issue of debt and liability which accrued and thereafter

keeping in mind the purpose for which the provisions were enacted observed

that Chapter XVII containing Sections 138 to 142 of the N.I. Act was

introduced in the Banking, Public Financial Institution and Negotiable

Instruments Law (Amendment) Act, 1988 (Act 66 of 1988) with the object of

inculcating faith in the efficacy of banking operations and giving credibility

to negotiable instruments in business transactions and in order to promote

efficacy of banking operations. According to the Learned Magistrate, the

amendment was intended to mould an atmosphere of faith and reliance in

the banking system. The Learned Magistrate thus observed that if a party is

allowed to use a cheque as a mode of deferred payment and the payee of the

cheque is confident that he will get his payment on the due date and as

such accepts such deferred payment by way of a cheque he should not be

allowed to suffer on account of non-payment. Thus, the Trial Court

proceeded to hold the accused guilty for the offence under Section 138 of the

Negotiable Instruments Act after taking into account the presumptions,

legislative intention and the failure of the accused to rebut the prosecution

evidence. After concluding regarding the guilt of the accused the Trial Court

afforded opportunity to the accused and thereafter sentenced him for simple

imprisonment of one year and fine amounting to Rs. 7,00,000/- (Rupees

Seven Lakhs) which was to be paid to the complainant within 10 days i.d.

further imprisonment for one year.

Criminal Appeal No. 3 of 2015 was preferred by the

accused/respondent herein which was disposed of by the Learned

Additional Sessions Judge, Bolpur, Birbhum and by the said judgment the

Learned Sessions Judge was pleased to allow the appeal holding the present

accused/respondent not guilty for the charges under Section 138 of N.I. Act.

What weighed with the Learned Appellate Court was the notice which was

brought on record before the Appellate Court by way of an application under

Section 311 of the Code of Criminal Procedure, the same was marked as

Ext. 4 at the instance of the complainant/petitioner.

The purpose for which the complainant brought the same to the

notice of the Appellate Court was to convince the Appellate Court regarding

the service of the notice. The learned Appellate Court relied upon the said

notice to make the same foundation of an acquittal in a case under Section

138 of the Negotiable Instruments Act. I have considered the contents of the

said Ext. 4 which was issued by the Learned Advocate of the

accused/respondent to the Learned Advocate of the complainant/petitioner.

The first paragraph of the said notice denies any cheque being issued. The

second paragraph states regarding the current account No. 721406011000

was closed on 22.04.2009 and a complaint was lodged with the police

station being Bolpur P.S. G.D.E. No. 1032 dated 21.05.2009 regarding the

cheque book being misplaced on transit on 20.05.2009. The third paragraph

states that after closing the account, no cheques were issued and it has

been denied that any monetary transaction was carried out. Fourth

paragraph states regarding an apprehension that the cheque has been

misused as the same was misplaced and lost in transit and the same is a

ploy of harassing the accused/respondent.

The learned Appellate Court, thereafter, relied upon the judgment of

M.S Narayana Menon -Vs.- State of Kerala (2006) 6 SCC 39 and by resorting

to Sections 118 and 139 of the N.I. Act was pleased to opine that the

accused has been able to rebut the evidence which has been brought

against him as the standard of proof by which the accused is required to

dislodge the evidence is on the principle of preponderance of probabilities.

The Learned Appellate Court after relying upon the judgment of Krishna

Janardhan Bhat v. Dattatraya G. Hegde reported in (2008) 4 SCC 54 was

pleased to set aside the judgment and order of conviction and sentence

passed by the Learned Magistrate and allowed the appeal.

There is a distinction between interference in cases of acquittal in

other offences and those under Section 138 of the Negotiable Instruments

Act. Further, in the case of Ghurey Lal -Vs.- State of U.P. reported in (2008)

10 SCC 450, the Supreme Court observed that :-

"69. The following principles emerge from the cases above:

1. The appellate court may review the evidence in appeals against

acquittal under Sections 378 and 386 of the Criminal Procedure

Code, 1973. Its power of reviewing evidence is wide and the appellate

court can reappreciate the entire evidence on record. It can review

the trial court's conclusion with respect to both facts and law.

2. The accused is presumed innocent until proven guilty. The

accused possessed this presumption when he was before the trial

court. The trial court's acquittal bolsters the presumption that he is

innocent.

3. Due or proper weight and consideration must be given to the trial

court's decision. This is especially true when a witness' credibility is

at issue. It is not enough for the High Court to take a different view of

the evidence. There must also be substantial and compelling reasons

for holding that the trial court was wrong.

70. In light of the above, the High Court and other appellate courts

should follow the well-settled principles crystallised by number of

judgments if it is going to overrule or otherwise disturb the trial

court's acquittal:

1. The appellate court may only overrule or otherwise disturb the

trial court's acquittal if it has ―very substantial and compelling

reasons‖ for doing so.

A number of instances arise in which the appellate court would have

―very substantial and compelling reasons‖ to discard the trial court's

decision. ―Very substantial and compelling reasons‖ exist when:

(i) The trial court's conclusion with regard to the facts is palpably

wrong;

(ii) The trial court's decision was based on an erroneous view of law;

(iii) The trial court's judgment is likely to result in ―grave miscarriage

of justice‖;

(iv) The entire approach of the trial court in dealing with the evidence

was patently illegal;

(v) The trial court's judgment was manifestly unjust and

unreasonable;

(vi) The trial court has ignored the evidence or misread the material

evidence or has ignored material documents like dying

declarations/report of the ballistic expert, etc.

(vii) This list is intended to be illustrative, not exhaustive.

2. The appellate court must always give proper weight and

consideration to the findings of the trial court.

3. If two reasonable views can be reached--one that leads to

acquittal, the other to conviction--the High Courts/appellate courts

must rule in favour of the accused."

In this case the Learned Appellate Court acted on a letter of the

Advocate and interfered with the order of conviction passed by the Learned

Trial Court. On the face of it, the Learned Appellate Court unnecessarily

gave importance to a G.D. Entry number which was reflected in the notice

although the original G.D. Entry was never brought on record. The Appellate

Court's finding on the subject so far as the issue of debt or liability is

concerned are not on accepted principles of law so far as the provisions of

Negotiable Instruments Act is concerned. The Appellate Court should have

been cautious as a belated plea taken by an accused cannot be given undue

importance in cases where presumption under Section 118 and 139 of the

Negotiable Instruments Act exist.

The manner in which the learned Appellate Court set aside the order

of the learned Magistrate calls for interference of this court as the same is

against the settled principle of law relating to Negotiable Instruments Act

and as such the same is liable to be set aside. Accordingly, the judgment

and order dated 31.08.2015 passed in Criminal Appeal No. 3 of 2015 by the

Learned Additional Sessions Judge, Bolpur is hereby set aside and the

judgment and order dated 31.01.2015 passed by the Learned A.C.J.M.

Bolpur, Birbhum in complaint case No. 136 of 2009 is hereby affirmed.

Thus, C.R.A. 756 of 2015 is hereby allowed.

The accused, namely, Asit Kumar Mondal is directed to surrender

before the Learned A.C.J.M, Bolpur, Birbhum in connection with complaint

case No. 136 of 2009 within a period of 7 days from date, in default the

Learned Magistrate is at liberty to exhaust the process of law for executing

the sentence which was imposed on 31.01.2015.

Pending application, if any, is hereby disposed of.

Department is directed to communicate this order to the learned

court below.

L.C.R., if any, be sent back to the learned court below forthwith.

All parties shall act on the server copy of this judgment duly

downloaded from the official website of this Court.

Urgent photostat certified copy of this judgment, if applied for, be

supplied to the parties upon compliance with all requisite formalities.

(Tirthankar Ghosh, J.)