Calcutta High Court (Appellete Side)

Barun Kumar Bose & Anr vs The State Of West Bengal & Anr on 1 May, 2023

                      IN THE HIGH COURT AT CALCUTTA

                      (Criminal Revisional Jurisdiction)

                              APPELLATE SIDE



Present:

The Hon'ble Justice Shampa Dutt (Paul)

                              CRR 609 of 2019

                          Barun Kumar Bose & Anr.

                                     Vs

                       The State of West Bengal & Anr.




For the Petitioners                 : Mr. Mrityunjoy Chatterjee,
                                      Mr. Manas Das.



For the State                       : None.



For the Opposite Party              : Ms. Shreyashee Biswas,
                                      Ms. Puja Goswami.




Heard on                            : 20.03.2023

Judgment on                         : 01.05.2023
                                                  2


     Shampa Dutt (Paul), J.:



1.

The present revision has been preferred praying for setting aside the judgment

and order dated 31.01.2019 passed by Learned Court of Additional Sessions

Judge, 3rd Court Howrah, in Criminal Appeal No. 09 of 2018, arising out of

Complaint Case No. C/117 of 2008 (T.R. 87 of 2008) wherein the Learned

Judicial Magistrate, 4th Court, Howrah by an order dated 13.11.2017 was

pleased to convict the petitioners under Section 138 of the Negotiable

Instruments Act, and passed a sentence to suffer simple imprisonment till

rising of this Court and also directed to pay fine of Rs. 5,00,000/- in default

to suffer imprisonment for a term of eleven (11) months.

2. The petitioner's case is that on 07.02.2008 the opposite party no.

2/complainant herein initiated a proceedings under Section 138 of the

Negotiable Instruments Act, 1881 against the accused /petitioner herein inter

alia alleging that the petitioner no.1 introduced himself before the

complainant that he was always in charge of the partnership firm under the

name of style of Raj Exports. It is further alleged that petitioner no. 1

approached the complainant for supply of certain quantity of lamcoke in

favour of petitioner no.2. Accordingly on 25.05.2007 the said articles of Rs.

2,64,735/- excluding 4% vat charge was supplied and after receiving the said

goods, the petitioner no. 2 issued two account payee cheques for an amount

of Rs. 45,324/- and Rs. 2,30,000/- vide cheque no. 951177 and 950975,

dated 25.05.2007 and 24.05.2007, drawn on Syndicate Bank, Baguihati

Branch, Kolkata - 700059 and on presentation of the said cheques for

encashment before the complainant's bank being Corporation Bank, Howrah,

the cheques were dishonoured vide return memo dated 20.11.2007 with the

endorsement "Exceeds Arrangement" and such intimation was intimated to

the complainant on 21.11.2007. Thereafter, the complainant issued a notice

on 19.12.2007 through his Learned Advocate with a request for making

payment of the entire amount covered by the 2(two) dishonoured Cheques

within 15 days from the date of receipt of said notice. In spite of receiving the

said notice the accused persons deliberately failed and neglected to pay the

aforesaid amount and accordingly a complaint case had been filed before the

Court of Learned Chief Judicial Magistrate, Howrah being Complaint Case No.

117 of 2008 for commission of offence punishable under Section 138 of the

Negotiable Instruments Act, 1881 and was transferred to the Court of Judicial

Magistrate, 4th Court, Howrah.

3. The Learned Judicial Magistrate, 4th Court, Howrah was pleased to issue

process against the petitioner.

4. The Learned Magistrate on completion of trial, passed the judgment and order

dated 13.11.2017 convicting the petitioner for commission of offence

punishable under Section 138 of the Negotiable Instruments Act, and

sentenced the petitioner to suffer imprisonment till rising of the Court and

also directed the petitioner to pay a fine of Rs. 5,00,000/-, in default, to suffer

simple imprisonment for 11 months.

5. Being aggrieved with the order passed by the Learned Magistrate the

petitioners preferred an appeal under Section 374 of Code of Criminal

Procedure before the Learned District and Sessions Judge, Howrah and the

said appeal was registered as Criminal Appeal No. 09 of 2018 and

subsequently the said appeal was transferred to the Court of Additional

Sessions Judge, 3rd court for disposal.

6. On 31.09.2019 the Learned First Appellate Court dismissed the said appeal

and affirmed the judgment and order dated 13.11.2017 passed by the

Learned Judicial Magistrate, 4th Court, Howrah in complaint case no. 117 of

2008.

7. It is submitted that the Learned Magistrate as well as the learned Additional

Sessions Judge, 3rd Court, Howrah, failed to consider the fact that the

complainant failed to establish any legally enforceable debt, as the cheques in

question were never issued by the accused persons.

8. That the Learned Magistrate as well as the Learned Appellate Court failed to

consider that no notice was served by the complainant demanding the

amount in respect of the dishonoured cheques.

9. Mr. Mrityunjoy Chatterjee, learned counsel for the petitioners has

submitted that the Learned Judge acted illegally and without jurisdiction in

proceeding with the complaint where prima-facie offence of Negotiable

Instruments Act is not disclosed.

10. The Learned Trial Court as well as First Appellate Court failed to consider the

fact that the complainant failed to establish any legally enforceable debt, as

the cheques in question which was issued by the accuseds were mere security

cheques.

11. The said cheques in question were post dated cheques kept with the

complainant and with malafide intention the complainant has used to same.

12. Ms. Shreyashee Biswas, learned counsel for the opposite party has

submitted that 15 years have passed but the petitioner has not paid the

cheque amount. As such there has been financial loss caused to the opposite

party since 2007.

13. It is further submitted that the judgment of the Trial Court and the Appellate

Court are in accordance with law and needs no interference by this Court.

14. The sentence passed by the Learned Magistrate is :-

"..... sentenced to suffer simple imprisonment till rising of this Court and directed to pay fine of Rs. 5,00,000/- (Five Lakhs) i.d. to suffer s.i for 11 months."

15. The Appellate Court has affirmed the judgment.

16. Hence the revision.

17. The prayer of the petitioner is regarding his financial condition and his

inability to pay the fine amount.

18. Considering the fact and circumstances in this case and the fact that the total

cheque (2) amount in this case is Rs. 2,75,324/- issued in the year 2007, it

will meet the interest of Justice if the fine amount is reduced to Rs.

4,00,000/- (Four Lakhs) in default simple imprisonment for three months.

19. CRR 609 of 2019 is disposed of accordingly.

20. The order dated 31.01.2019 passed by Learned Court of Additional Sessions

Judge, 3rd Court Howrah, in Criminal Appeal No. 09 of 2018, arising out of

Complaint Case No. C/117 of 2008 (T.R. 87 of 2008) wherein the Learned