Sri Amarjit De vs Sri Nabarun Datta Alias Utpal ...
2021 Latest Caselaw 1176 Tri

                        HIGH COURT OF TRIPURA
                              AGARTALA
                            Crl.Rev.P.No.39 of 2019

Sri Amarjit De, son of late Manindra Kumar De resident of Main Road
(Sukanta Sarani), Belonia, PO. Belonia-799155, District-South Tripura,
Tripura.
                                                      ----Petitioner(s)

                              Versus
1.Sri Nabarun Datta alias Utpal Datta, son of late Amalendu Datta
resident of Amlapara, Belonia, PO. Belonia-799155, District-South
Tripura, Tripura.
2.The State Of Tripura represented by PP, High Court of Tripura,
Agartala.
                                                 -----Respondent(s)
                             BEFORE

          HON'BLE MR. JUSTICE S.G.CHATTOPADHYAY

For the Petitioner(s)        :     Mr. H.K.Bhowmik, Adv.

For the Respondent(s)        :     Mr. P.K.Biswas, Sr. Adv.
                                   Mr. Ratan Datta, PP.
Date of hearing              :     16.09.2021
Date of pronouncement        :     26.11.2021
Whether fit for reporting    :     No.


                                 JUDGMENT

[1] This Criminal Revision Petition is directed against the

impugned order dated 25.03.2019 passed by the Chief Judicial

Magistrate, South Tripura Judicial District, Belonia in case No. NI 09 of

2017 whereby the learned CJM decided to proceed with the case under

Section 138 NI Act after rejecting a petition dated 02.08.2018 of the

accused petitioner which was filed under Section 300 Cr.P.C.

[2] The factual background of the case is as under:

Respondent herein filed a complaint before the CJM, South

Tripura, Belonia under Section 138 NI Act alleging that petitioner

borrowed a sum of Rs.2,60,000/- from him. In order to pay back the

loan, petitioner issued 03 cheques of different amounts on 04.11.2013

drawn on Tripura State Co-operative Bank, Belonia branch. Respondent

presented the cheque for encashment in UBI, Belonia branch where he

had an account. But the cheques were dishonoured for insufficiency of

fund in the account of the petitioner.

[3] Respondent issued statutory demand notice to the petitioner

by registered post which was received by the petitioner on 03.12.2013.

Petitioner replied to the notice on 11.12.2013. In his reply he stated that

he had already returned the whole amount to the respondents in

instalments.

[4] Dissatisfied with the reply of the petitioner, respondent filed

a complaint in the court of the CJM on 17.12.2013 under Section 138 NI

Act. Based on his complaint, case No.CR 23(NI) of 2013 was registered

and cognizance of offence punishable under Section 138 NI Act was

taken.

Crl.Rev.P No.39 of 2019

[5] After full trial of the case, leaned CJM by his judgment and

order dated 11.04.2016 held the petitioner not guilty and acquitted him

of the charge of Section 138 NI Act. His judgment will demonstrate that

learned CJM acquitted the accused mainly on the grounds that

cognizance of the offence under Section 138 NI Act was taken before

expiry of the statutory period of 15 days commencing from the date of

receipt of the demand notice and the accused petitioner by adducing

evidence established that he repaid the entire loan amount to the

respondent after the impugned cheques were issued by him. But the

complainant did not return the said cheques to him. Later, he

intentionally presented the said cheques at the bank to get those cheques

dishonoured and prosecuted the petitioner. After full trial of the case,

learned CJM acquitted the accused petitioner in unambiguous term.

[6] Aggrieved with the said judgment and order of acquittal of

the petitioner, the complainant who is the respondent herein preferred an

appeal in the court of the learned Sessions Judge at Belonia in South

Tripura. The appeal was registered as Crl. Appl. No. 17 of 2016 and the

learned Sessions Judge by his impugned judgment and order dated

10.01.2017 dismissed the appeal on the ground that such appeal was not

sustainable in view of the proviso to Section 372 Cr.P.C.

Crl.Rev.P No.39 of 2019

[7] After the appeal of the complainant was so dismissed, he

filed a fresh petition in the court of the CJM under Section 138 NI Act.

Since such fresh complaint was filed beyond statutory period of 01

month from the date on which cause of action arose, complainant

respondent by filing a separate petition sought for condonation of delay

in terms of the proviso to clause (b) of sub-section(1) of Section 142 NI

Act.

[8] Based on the fresh complaint, NI 09 of 2017 was registered

in the court of the learned CJM and by the order dated 09.03.2017,

learned CJM condoned the delay and took cognizance of offence under

Section 138 NI Act on the fresh complaint filed by the complainant

respondent without providing any opportunity of hearing to the present

petitioner.

[9] Having received summons from the court, petitioner

appeared and by filing a petition sought for an opportunity to file a

written objection against the petition for condonation of delay. The

learned CJM by his order dated 29.08.2017 rejected the petition on the

ground that since the matter was already disposed of by condoning

delay, petitioner was not entitled to re-agitate the issue.

Crl.Rev.P No.39 of 2019

[10] Aggrieved petitioner preferred a criminal revision petition

before the Sessions Judge, South Tripura Belonia which was registered

as Crl. Rev.P.09 of 2017. The learned Sessions Judge by the order dated

31.05.2018 dismissed the said criminal revision petition viewing that

learned CJM committed no error by condoning the delay in terms of

Section 142 NI Act and taking cognizance of offence on the fresh

application of the complainant without providing any opportunity of

hearing to the petitioner. The relevant extract of the order dated

31.05.2018 of the learned Sessions Judge is as under:

" At this juncture, if for the purpose of procedural aspect, I travel to chapter 15 of Cr.P.C., it appears that the Magistrate shall concentrate his judicial mind on the complaint and shall decide whether he should proceed further or not and on this stage, if Magistrate proceed further, it can be said that he has taken cognizance of the case.

Hence, the language of the proviso to clause(b) of section 142 N.I. Act makes it apparent that if the complainant can satisfy a court for not preferring complaint within the prescribed period, the Magistrate may take cognizance of the complaint by condoning the delay. Hence, it cannot be said as argued by learned counsel Mr. S. Majumder that without hearing the accused, learned trial court took cognizance and thereby committed a mistake.

Thus, I find no force behind such submission of learned counsel Mr. Majumder.

Hence, the Crl. Revision stands dismissed. The case stands disposed of."

[11] Thereafter, the petitioner filed a petition in the court of the

learned CJM claiming relief in terms of Section 300 Cr.P.C. on the

Crl.Rev.P No.39 of 2019

ground that the same matter was decided by the court of CJM in case

No.NI 23 of 2013 on merit after a full trial of the case. Accused was

found not guilty and he was acquitted. But the complainant respondent

without challenging the order of acquittal filed a fresh complainant

under Section 138 NI Act on the same allegations. The trial court took

cognizance of the offence after condonation of delay and that too

without affording any opportunity of hearing to the petitioner. Said

petition was dismissed by the learned CJM by the impugned order and

the case was listed for examination on the accused under Section 251

Cr.P.C.

[12] Challenging the said order the petitioner has approached

this court by means of filing this criminal revision petition seeking the

following reliefs:

"In the face of the facts and circumstances narrated herein above, the petitioner would pray that Hon'ble High Court would be gracious enough to

(i) Admit this revision petition;

(ii) Pass an interim order staying further proceeding with the trial in Case no.NI-9 of 2017 without notce and make the order absolute till disposal of this revision pettion after hearing both the parties

(iii) Issue notice upon the respondents;

Crl.Rev.P No.39 of 2019

(iv) Call for the relevant records of the Court below;

(v) After hearing set aside the orders dated 09.03.2017 and 25.03.2019 passed by the learned CJM, Belonia in case No.NI-09 of 2017, dismiss the second complaint dated 09.03.2017 and absolve the petitioner from liability of the case.;

AND

(vi) Pass any other order or orders as the Hon'ble High Court deems fit and proper"

[13] Heard Mr. D.K.Daschowdhury learned counsel appearing

for the accused petitioner. Heard Mr.P.K.Biswas, learned Sr. Advocate

appearing for the private respondent along with Mr. P.Majumder,

learned advocate. Also heard Mr. Ratan Datta, learned PP representing

the State respondent.

[14] It is contended by Mr.Daschowdhury, learned counsel of

the petitioner that in CR23(NI) of 2013 arising out of the same incident,

accused was acquitted after a full trial of the case and therefore, a second

trial is barred under Section 300 Cr.PC. Counsel, therefore, submits that

impugned order dated 25.03.2019 whereby the learned trial court

decided to proceed with the fresh complainant filed by the complainant

for the same cause of action was barred under Section 300 Cr.P.C.

Counsel therefore, urges the Court to set aside the impugned order.

Crl.Rev.P No.39 of 2019

[15] Mr.P.K.Biswas, learned Sr. Advocate has contended that

the learned trial court held in CR 23(NI)of 2013 that the complaint was

filed in the case before expiry of the period of 15 days from the date of

receipt of the demand notice and on this ground alone case was

dismissed and accused was acquitted. Therefore, the filing of fresh

complainant was the only remedy available to the complainant

respondent. In support of his contention Mr.Biswas learned Sr.Advocate

has relied on the decision of the Apex Court in Yogendra Pratap Singh

Vs. Sabitri Pandey and Anr. reported in 2015 Cri.LJ 51 wherein the

Apex Court has held that complaint filed before the expiry of 15 days

from the date of receipt of notice issued under clause (c) of the Proviso

to Section 138 is not maintainable and the complainant cannot be

permitted to present the very same complaint at any later stage. His only

remedy is to file a fresh complaint. Observation of the Court in

paragraph 42 of the Judgment is as under:

"42............As we have already held that a complaint filed before the expiry of 15 days from the date of receipt of notice issued under clause (c) of the proviso to Section 138 is not maintainable, the complainant cannot be permitted to present the very same complaint at any later stage. His remedy is only to file a fresh complaint; and if the same could not be filed within the time prescribed under Section 142(b), his recourse is to seek the benefit of the proviso, satisfying the Court of sufficient cause. Question (ii) is answered accordingly."

Crl.Rev.P No.39 of 2019

[16] Counsel submits that the complainant challenged the

judgment of acquittal of the petitioner before the learned Sessions Judge

in Criminal Appeal No.17 of 2016 wherein the learned Sessions Judge

also held that the complaint was premature as no cause of action arose

on 17.12.2013. Liberty was given to the complainant appellant to decide

whether a fresh complaint seeking condonation of delay would be filed.

Thereafter, the petitioner filed a fresh complainant before the

jurisdictional CJM along with a petition for condonation of delay. The

learned CJM condoned the delay and decided to proceed with the fresh

complainant filed by the complainant. According to learned counsel,

there is no wrong in the impugned order passed by the learned CJM and

therefore, the present criminal revision petition in which the said order

has been challenged deserves dismissal.

[17] Perused the record. Considered the submissions made at the

bar. In the case of Yogendra Pratap Singh Vs. Savitri Pandey(supra),

appellant filed a complaint under Section 138 NI Act against respondent

No.01 before expiry of the statutory period of 15 days and the

Magistrate took cognizance of offence and issued summons to the

accused who assailed the order in a petition under Section 482 CrPC

before the High Court . The High Court held that since the complaint

was filed within 15 days of the service of the demand notice, the same

Crl.Rev.P No.39 of 2019

was premature and the order passed by the Magistrate taking cognizance

was quashed against which the appellant came to the Hon'ble Supreme

Court.

[18] In the present case, for same cause of action complainant

private respondent filed a complainant under Section 138 NI Act in the

court of the CJM, South Tripura, Belonia which was registered as

CR(NI)23 of 2013 in which evidence was taken and learned CJM by his

judgment and order dated 11.04.2016 found the petitioner not guilty and

acquitted him of the said charge on various grounds. One of those

grounds is that the complaint was premature as it was filed within 15

days from the date of receipt of the demand notice. Another ground of

his acquittal was that accused established the fact that after issuing the

impugned cheques, he paid back the entire loan to the complaint. As

discussed, the complainant challenged the said judgment before the

learned Sessions Judge in Criminal Appeal 17 of 2016. Leaned Sessions

Judge by his judgment and order dated 10.01.2017 dismissed the appeal.

He, however, held that the appeal was dismissed because it was not

maintainable in terms of the proviso to Section 372 Cr.P.C. It is thus

clear that accused was once tried in NI 23 of 2013 for the same cause of

action in which evidence was taken and after full trial he was acquitted

because the complainant could not establish the charge against him.

Crl.Rev.P No.39 of 2019

Order of his acquittal still remains in force. In these circumstances,

learned trial court committed error by entertaining a fresh complainant

for the same cause of action between the same parties.

[19] For the reasons stated above, the impugned order dated

25.03.2019 passed in NI 09 of 2017 by the CJM, South Tripura is set

aside and the Criminal Revision Petition stands allowed.

In terms of the above, the case is disposed of.

                          [20]        Send down the LC record.

                                                                         JUDGE




Saikat Sarma, P.S-II




Crl.Rev.P No.39 of 2019