Calcutta High Court (Appellete Side)
D.Hira Sakti Pada Ray vs Rakhee Dhar on 8 December, 2022
08.12.2022
Court No.35
Item No. 9 CRA 711 of 2010
D.Hira Sakti Pada Ray
Vs.
Rakhee Dhar
Mr. Mit Guha Roy.
... for the appellant
Mr. Pravas Bhattacharya,
Ms. Debjani Sahu.
... for the State
This appeal is directed against the judgment and order dated 31st
August, 2010 delivered by the Trial Court to find, inter alia, that the
case of the prosecution was not proved to the standard of beyond all
reasonable doubt and the accused person that is the respondent in this
appeal was acquitted therein.
The appellant/defacto complainant/ alleged lender of money has
come up in this appeal against the said judgment and order dated 31st
August, 2010, on the grounds, inter alia, that the Trial Court has failed
to consider the legally enforceable debt of the accused person in taking
the concerned money of an amount of Rs.1,50,000/-, that the Trial
Court has failed to apply its mind to the depositions recorded before it,
that the Trial Court has not exercised jurisdiction vested in by law in
acquitting the accused person in the impugned judgment. That the
judgment impugned in this case is liable to be set aside being de hors
the settled principles of law.
The factual background may be narrated in brief, inter alia, that
the parties, that is, the complainant and the accused person and her
husband were acquainted to each other and during subsistence of their
good relationship, the complainant/appellant advanced the amount of
loan to the tune of Rs.1,50,000/- to the accused person/respondent.
The complaint further reveals that in spite of assurance given to repay
the said amount within the particular period of time i.e., within 15th
January, 2009, the respondent/accused person failed to pay back the
said amount of money.
It is alleged that a cheque was issued to the appellant dated 2nd
February, 2009 of same amount bearing no.213673 dated 31st March,
2009 drawn on UCO Bank, Kharagpur Branch and the same when
deposited in bank for realization was dishonoured due to insufficiency
of fund in the respondent's accounts.
This has given rise to filing of complaint by the present appellant
in the Trial Court on 20th July., 2009 being registered as C.R. No. 12 of
2009,
Trial was conducted. During trial, three (3) witnesses were
examined.
The complainant deposed about the respondent/accused person
promising him to repay the money by a particular dated i.e., 15th
January, 2009. The complainant further deposed that the cheque was
issued on 2nd February, 2009 and that the same was bounced.
Husband of the complainant was also examined to corroborate
the complainant's deposition as discussed above.
PW 3 was an independent person. He deposed about having
knowledge of the transaction that took place between the appellant and
respondent, handing over cheque for discharge of that loan by the
respondent to the appellant and also dishonour of the said cheque
when submitted for realization.
After thorough scrutiny of the evidence as discussed above, it
appears that neither of the witnesses have ever narrated about a legally
enforceable transaction between the appellant and the respondent to
enforce any debt. The complainant was examined under Section 313 of
the Code of Criminal Procedure. However, on this particular point
which is the moot point to be decided by the Trial Court in a case under
Section 138 of the Negotiable Instruments Act no incriminating material
revealed from her such examination.
Upon this evidence on record, the Trial Court decided the case
that the complainant/appellant could not bring on record any sufficient
material to show that he advanced an amount of Rs.1,50,000/- to the
respondent which would be termed as a legally enforceable debt
advanced to the respondent/accused person by the
complainant/appellant.
It is a trait law that the penal provisions of the Negotiable
Instruments Act would attract in the event when the accused person
has failed to satisfy a legally enforceable debt, by way of dishonored of
cheque.
In this case in absence of any sufficient material as to the same,
there could have been no other finding of the learned Trial Court than
to decide the innocence of the accused person and her acquittal. In the
impugned judgment, the Trial Court has considered the evidence on
record and came to a finding as above, which appears to be proper and
in accordance with law.
Hence, their remains no scope by this appeal Court to interfere
into the said judgment of the Trial Court dated 31st August, 2010 and
the same is legible to be upheld by this Court.
The appeal is dismissed. The judgment and order dated 31st
August, 2010 passed by the Trial Court in C.R. Case No. 12 of 2009
under Section 138 of the Negotiable Instruments Act is upheld.
The Court is thankful for the hard work put in by the learned
Counsel and assistance rendered by Mr. Mit Guha Roy in this case.
All parties shall act on the server copies of this order duly
downloaded from the official website of this Court.
(Rai Chattopadhyay, J.)
