Calcutta High Court (Appellete Side)

Alamgir Russel Anwar vs Durgesh Chandra Sarkar & Anr on 29 September, 2023

                      IN THE HIGH COURT AT CALCUTTA
                        Criminal Revisional Jurisdiction
                              APPELLATE SIDE

Present:

The Hon'ble Justice Shampa Dutt (Paul)



                                  CRR 606 of 2019

                              Alamgir Russel Anwar

                                         Vs.

                         Durgesh Chandra Sarkar & Anr.



For the Petitioner                 :    Mr. Md. Kazi Safiullah.


For the State                     :     None.


For the Opposite Party            :     None.
No. 2


Hearing concluded on          :        04.09.2023

Judgment on                       :    29.09.2023




Shampa Dutt (Paul), J.:

1.      The present revision has been preferred against an order and judgment

     dated 14.12.2018 in Criminal Revision No. 21 of 2018 passed by the

     learned Additional Sessions Judge, 3rd Court, Malda.

2.      The petitioner's case is that in the year 2008, the petitioner being in

     certain financial trouble took loans from the opposite party no. 1 on two
                                          2


     occasions, one of Rs.1,50,000/- (Rupees One Lakh Fifty Thousand) and

     next time Rs.30,00,000/- (Rupees Thirty Lakh).


3.      To repay the said loans the petitioner issued two cheques in favour of

     the respondents one being cheque no. PWT 794807 dated 07.01.2008

amounting to Rs.1,50,000/- (Rupees One Lakh Fifty Thousand) only and

another cheque being no. PWT 794809 dated 07.01.2008 bearing the face

value of Rs.3,00,000/- (Rupees Three Lakh) only in the Punjab National

Bank, Kumbhara Branch, Malda.

4. On presentation of the said two cheques to the bank concerned, both

were dishonoured and on the said allegations the respondent instituted

two complaint cases, one being 273C/2008 and another being

222C/2008. The total claims in respect of both the cases was

Rs.4,50,000/- (Rupees Four Lakh Fifty Thousand) only against this

petitioner in the Court of the Learned Judicial Magistrate, Malda.

5. On continuation of those cases for a long time in the Court of the

learned Magistrate of Malda, the petitioner and the respondent came to an

amicable settlement to the effect that the claims of both the cases be

amalgamated and the respondent relinquished his claim of Rs.4,50,000/-

from the petitioner by way of compromise and agreed to his total

consolidated claim of Rs.2,50,000/- in respect of both those cases and had

accepted Rs.1,50,000/- out of the said claim leaving behind the residual

amount of Rs.1,00,000/- (Rupees One Lakh) out of the said settlement

amount of Rs.2,50,000/- (Rupees Two Lakh Fifty Thousand).

6. Mr. Md. Kazi Shafiullah, learned counsel for the petitioner has

submitted that the aforesaid amount of Rs.1,00,000/- (Rupees One Lakh)

which remained unpaid to the respondent is the part of the compromise

settlement between the parties which is not covered under any claim of the

respondent under Sections 138/141/142 of the Negotiable Instrument

Act, 1881 and the respondent admittedly did not file any complaint before

any Court claiming the amount of Rs.1,00,000/- (Rupees One Lakh) in

respect of any cheque having the face value of the said amount which had

ever been issued by this petitioner in favour of the respondent and the

same was never been dishonoured by any bank due to any deficiency on

the part of this petitioner.

7. That the rigour of the applicability of N.I. is in respect of those two

cheques amounting to Rs.4,50,000/- has been extinguished at the

moment the respondent agreed to amalgamate his claims in respect of his

those two cheques for Rs.2,50,000/- only and subsequently accept

Rs.1,50,000/- as the part payment of the said amount.

8. That the impugned order dated 14.12.2018 of the Additional Sessions

Judge, 3rd Court, Malda passed in Criminal Revision No. 21/2018 is not in

any way sustainable both in facts and laws and the learned Revisional

Court was oblivious of the fact that he was to adjudicate the conflict

between the parties which originated from two cases under Sections

138/141/142 of the Negotiable Instrument Act, 1881 and when the same

came before him for decision the same had lost its basic character by the

conduct of complainant (respondent herein) of the cases when the

complainant relinquished his claims in respect of the so called two

cheques, the dishonouring of which gave the Court the jurisdiction to try

the alleged offences under the N.I. Act but the compromise and settlement

between the parties over the payment of the claim by complainant

(respondent herein) brought the arrear due as the civil liability for which

no criminal prosecution lies.

9. That the learned trial Court wrongly decided the case without going to

the merit of the same as the case concerned is in no way connected with

any provision of the Negotiable Instrument Act, 1881.

10. That the respondent concerned on accepting the compromise to settle

his all claims against the petitioner for Rs.2,50,000/- and accepting the

part payment of the said sum, is deprived from the benefit of the provision

of N.I. Act.

11. That claim of Rs.1,00,000/- of the respondent is not covered by any of

the two cheques referred by the respondent before the learned Trial Court

as none of the cheques given to him has the face value of Rs.1,00,000/-.

12. That the ultimate consolidated claim of Rs.2,50,000/- of the respondent

against the petitioner, nowhere corresponds to his earlier claims against

this petitioner in respect of the alleged two cheques referred above and as

such claim of Rs.1,00,000/- of the respondent against this petitioner and

in no way binds this petitioner to pay the same to the respondent and his

said claim is in no way recoverable under any provision of the N.I. Act as

stated above.

13. It is thus prayed that the judgment and order under revision is liable to

be set aside and the petitioner is to be acquitted of all charges.

14. In spite of best efforts to serve, the opposite party was not

represented.

15. The relevant portion of the order of the Trial Court dated

02.02.2018 is as follows:-

"..............On perusal I find that the value of cheque of this case is Rs.3,00,000/-. It is admitted that in the year 2015 there was an agreement for settlement between the parties at an amount that is less than the cheque amount of this case. If both parties agreed to settle the case, this court would have nothing to say. But in this case as the complainant is not willing to accept lesser amount than the cheque amount, this court cannot force him to compromise the case at lesser amount.

Considering the above discussion, I am not inclined to allow the petition of the accused................"

16. The said order was affirmed by the Sessions Court vide the order

under revision dated 14.12.2018.

17. From the materials on record it appears:-

i) At page 12 of the revisional application is the copy of the receipt

dated 22.12.2015, duly signed by the complainant accepting

payment of Rs.1,50,000/- out of the settlement amount of

Rs.2,50,000/-.

ii) The cheque (two) dated 07.01.2008 are for Rs.1,50,000/- and

Rs.3,00,000/- respectively.

iii) The cheque was presented (date not mentioned) on

maturity but dishonoured.

iv) Admittedly, the settlement, if any was not made between

the period when the cheque was drawn and the day it was

presented on maturity.

v) Settlement as stated failed as the settlement amount was not

paid.

vi) On the date of the cheque being presented, the total amount

in the cheque was due and payable by the petitioner towards an

enforceable debt/liability.

18. In Dashrathbhai Trikambhai Patel vs. Hitesh Mahendrabhai

Patel & Anr. reported in 2022 LiveLaw (SC) 830 wherein the

Hon'ble Supreme Court held as follows:-

"30. In view of the discussion above, we summarise our findings below :

(i) For the commission of an offence under Section 138, the cheque that is dishonoured must represent a legally enforceable debt on the date of maturity or presentation;

(ii) If the drawer of the cheque pays a part or whose of the sum between the period when the cheque is drawn and when it is encashed upon maturity, then the legally

enforceable debt on the date of maturity would not be sum represented on the cheque;

(iii) When a part or whole of the sum represented on the cheque is paid by the drawer of the cheque, it must be endorsed on the cheque as prescribed in Section 56 of the Act. The cheque endorsed with the payment made may be used to negotiate the balance, if any. If the cheque that is endorsed is dishonoured when it is sought to be encashed upon maturity, then the offence under Section 138 will stand attracted;

(iv) The first respondent has made part-payments after the debt was incurred and before the cheque was encashed upon maturity. The sum of rupees twenty lakhs represented on the cheque was not the „legally enforceable debt‟ on the date of maturity. Thus, the first respondent cannot be deemed to have committed an offence under Section 138 of the Act when the cheque was dishonoured for insufficient funds; and

(v) The notice demanding the payment of the „said amount of money‟ has been interpreted by judgments of this Court to mean the cheque amount. The conditions stipulated in the proviso to Section 138 need to be fulfilled in addition to the ingredients in the substantive part of Section 138, the validity of the form of the notice need not be decided."

19. Thus the contention of the petitioner that the claim of the balance

amount on settlement not being the amount of cheque, the present

proceeding under Section 138 N.I. Act being not maintainable, is not in

accordance with law, as the payment was not made between the date

when cheque was drawn and the date when the cheaque was

presented on maturity, and on the date of presentation, the total

cheque amount was payable by the petitioner towards an enforceable

debt and liability.

20. The revisional application being CRR 606 of 2019 is accordingly

dismissed.

21. The order and judgment dated 14.12.2018 in Criminal Revision No. 21

of 2018 by the learned Additional Sessions Judge, 3rd Court, Malda, is