Tripura Real Estate ... vs Shri Subal Chandra Das
2022 Latest Caselaw 453 Tri

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                                   HIGH COURT OF TRIPURA
                                         AGARTALA

                                   Crl. Rev. P. No. 69 of 2019

1. Tripura Real Estate Constructions Limited,
Having its registered Office at Motor Stand Purba Thana Road, Near Mohanam
Angan Ashram, P.S. East Agartala, West Tripura District.
2. Shri Bankim Chowdhury,
Son of Late Rakhal Choudhury,
Chief Managing Director, Tripura Real Estate Constructions Limited, Opposite of
Jogendra Nagar Girls H/S School, P.O. Jogendra Nagar, P.S. East Agartala, West
Tripura District.
3. Smt. Ratna Debnath,
Accounts Director of Tripura Real Estate Constructions Limited, having its registered
Office at Motor Stand Purba Thana Road, Near Mohanam Angan Ashram, P.S. East
Agartala, West Tripura District.
                                                                  ----- Petitioner(s)
                                            Versus
1. Shri Subal Chandra Das,
Son of Shri Raichand Das, resident of Central Road of Kamalnagar, Kalyanpur, P.S &
District Khowai Tripura.
2. The State of Tripura
                                                               -----Respondent(s)

For Petitioner(s)                           :        Mr. H.K. Bhowmik, Advocate.
For Respondent(s)                           :        Mr. D. Deb, Advocate.
                                                     Mr. S. Pal, Advocate.
                                                     Mr. S. Debnath, Addl. P.P.
Date of Hearing                             :        24th November, 2021.
Date of Pronouncement                       :        19th April, 2022.
Whether fit for reporting                   :        NO

                                         B_E_F_O_R_E_
                         HON'BLE MR. JUSTICE S.G. CHATTOPADHYAY
                                       JUDGMENT & ORDER

By means of this criminal revision, petitioner has challenged the

impugned judgment dated 28.08.2019 passed by the Additional Sessions Judge,

Court No.4, Agartala in Criminal Appeal No.17 of 2018 affirming the judgment and

order of conviction and sentence dated 18.09.2018 passed by the learned

Additional Chief Judicial Magistrate, West Tripura, Agartala in case No.NI 132 of

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2012 whereby each of the three accused were convicted under section 138 of the

Negotiable Instruments Act, 1881 and sentenced to a fine of Rs.50,000/- with

default stipulation.

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

Subal Chandra Das lodged a complaint in the court of the Chief

Judicial Magistrate at Agartala on 19th day of October, 2012 alleging, inter alia, that

by way of publishing advertisement in a local daily, the accused company namely,

Tripura Real Estate Constructions Limited offered land for sale at Agartala. Pursuant

to the said advertisement, the complainant who was a Government employee at

that time approached accused No.2 Bankim Chowdhury, Chief Managing Director of

the accused company and entered into an unregistered agreement for purchasing a

plot of land measuring 0308 acres at Agartala in plot No.324/2994 at Agartala

Mouja recorded in Khatian No.940. Price of the land was settled at Rs.7,00,000/-

and under the said agreement, complainant paid a sum of Rs.1,00,000/- in advance

to accused No.2 Bankim Chowdhury. Accused No.2 assured on behalf of the

accused company that a registered sale deed would be executed in favour of the

complainant within 75 days. Even after the expiry of the period stipulated in the

agreement, no sale deed was executed on behalf of the company in favour of the

complainant. Rather, accused Bankim Chowdhury being the Chief Managing

Director of the said company had issued a cheque vide cheque No.723424 dated

30.06.2012 of a sum of Rs.1,00,000/- in favour of the complainant towards refund

of the advance taken from him. The said cheque was drawn on Indusind Bank at its

Mantri Bari Road branch, Agartala. The cheque was signed by said Bankim

Chowdhury, Chief Managing Director and Smt. Ratna Debnath who was the

Accounts Director of the said real estate construction company. On 02.07.2012, the

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complainant presented the cheque at the Teliamura Branch of the United Bank of

India where he had an account. From UBI, the cheque was sent to the IndusInd

Bank for encashment. But it was returned to the bank of the complainant with an

endorsement dated 07.07.2012 to the effect that the said cheque was dishonoured

due to insufficiency of fund in the account of the accused company. Complainant

informed accused Bankim Chowdhury about the dishonor of the cheque who

assured that sufficient fund would be made available in the account of the company

and asked the complainant to resubmit the cheque. Following such assurance,

complainant again presented the cheque at his bank on 27.07.2012. The said

cheque was again returned to his banker with an endorsement that it was

dishonoured for insufficient fund in the account of the drawer of the cheque.

Complainant then issued a demand notice to accused Bankim Chowdhury

demanding refund of Rs.1,00,000/- within 15 days from the date of the receipt of

the demand notice. The notice was sent to the accused by post registered with AD.

Since, there was no response from the side of the accused, complainant lodged the

complaint in the court of the Chief Judicial Magistrate impleading the company as

accused No.1, its Chief Managing Director, Bankim Chowdhury as accused No.2 and

the Accounts Director of the company Smt. Ratna Debnath as accused No.3.

[3] The complaint was received in the court of the Chief Judicial

Magistrate on 19.10.2012 and after examination of the complainant under section

200 Cr.P.C, cognizance of offence was taken and complainant was asked to take

steps for issuing summons to the three accused. Since the complainant defaulted in

filing requisites before the Court for issuing summons to the accused persons, by an

order dated 29.01.2014, the learned Additional Chief Judicial Magistrate dismissed

the complaint. Complainant challenged the said order of dismissal of the complaint

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in the High Court by filing Crl. Rev. P. No.04 of 2015. This Court, by order dated

01.06.2015 in Crl. Rev. P. No.04 of 2015 set aside the order of the Additional Chief

Judicial Magistrate dated 29.01.2014 imposing cost of Rs.5,000/- to the

complainant and directed that the costs so imposed would be awarded to the

respondents on realization. Counsel appearing for the respondents in the High

Court assured that the respondents would appear before the trial court on the next

listed date and the issuance of summons to the respondents from the trial court

was waived by the counsel of the respondents.

[4] The trial court proceeded with the trial of the case. The substance

of accusations were read over and explained to the accused persons in terms of

section 251 Cr.P.C. They pleaded not guilty and desired to stand the trial.

[5] In the course of the trial, complainant examined himself as PW-1,

one Arun Kr. Roy who also entered into similar agreement with the accused real

estate company for purchasing a plot from them was examined as PW-2 and Pradip

Majumder, a colleague of the complainant was examined as PW-3. This apart,

complainant adduced the impugned cheque dated 30.06.2012 [Exbt.1], letter of the

bank conveying that the cheque was dishonoured [Exbt.2], Memo whereby the

cheque was returned [Exbt.3], letters of the Director of Postal Services [Exbt.4 and

5], postal receipt [Exbt.6] and some letters of accused real estate company [Exbt.7]

were taken into evidence and marked as exhibits on the side of the complainant.

[6] Accused Bankim Chowdhury got himself examined as DW-1 and

accused Ratna Debnath got herself examined as DW-2. No documentary evidence

were adduced on behalf of the accused persons.

[7] After the evidence was recorded, accused were examined under

section 313 Cr.P.C separately. The trial court explained to them the incriminating

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circumstances which appeared against them from the prosecution evidence.

Accused Bankim Chowdhury admitted that the agreement was signed by the

accused real estate company agreeing to sell a plot of land to the complainant

within 75 days of signing the agreement. About the fact that the cheque issued by

him was dishonoured by the bank after its presentation, accused denied the fact.

Accused admitted the fact that complainant paid Rs.1,00,000/- in advance after the

agreement was signed between him and the accused real estate company. Accused

stated that the impugned cheque was collected by the complainant from him

forcibly. He pleaded that he was innocent and the charge was foisted on him.

[8] Ratna Debnath, another accused gave almost the same reply

during her examination under section 313 Cr.P.C. She also admitted the execution

of the agreement between the complainant and her company and she also admitted

the fact that complainant paid Rs.1,00,000/- in advance for purchasing a plot of

land from their company. In same tune with accused Bankim Chowdhury, she

pleaded that impugned cheque was obtained from them by the complainant by

force. She stated that she was innocent and the complainant falsely implicated her

in the case.

[9] On appreciation of evidence, the trial court held that complainant

successfully established the essentials of section 138 NI Act. Accused being the

drawer of the cheque on the other hand could not discharge the presumption under

section 139 NI Act by adducing evidence. Learned trial court, therefore, held all the

three accused guilty of offence punishable under section 138 NI Act and after their

conviction, sentenced each of them as under:

"36. As a result the accused namely Tripura Real Estate Constructions Limited, Sri Bankim Chowdhury and Smt. Ratna Debnath are convicted of the offence U/S 138 of the

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Negotiable Instruments Act, 1881 read with section 141 of NI Act, 1881 and they are sentenced as follows :

37. The accused No.1 i.e. Tripura Real Estate Constructions Limited is sentenced to pay a fine of Rs. 50,000/-(Rupees fifty thousand)only U/S 138 of NI Act, 1881 read with section 141 of NI Act, 1881 and in default of payment of fine by accused No.1 which is a corporate entity its representatives namely accused No. 2 Sri Bankim Chowdhury and accused No. 3 Smt. Ratna Debnath shall suffer simple imprisonment for 15(fifteen) days each.

38. The accused No.2 i.e. Sri Bankim Chowdhury is sentenced to pay a fine of Rs. 50,000/-(Rupees fifty thousand)only U/S 138 of NI Act, 1881 read with section 141 of NI Act, 1881 and in default of payment of fine he shall suffer further Simple Imprisonment for a period of 15(fifteen) days.

39. The accused No.3 i.e. Smt. Ratna Debnath is sentenced to pay a fine of Rs. 50,000/-(Rupees fifty thousand)only U/S 138 of NI Act, 1881 read with section 141 of NI Act, 1881 and in default of payment of fine she shall suffer further Simple Imprisonment for a period of 15(fifteen) days."

[10] Aggrieved by the judgment and order of their conviction and

sentence, the accused persons filed an appeal against the said judgment before the

learned Sessions Judge, West Tripura, Agartala under section 374 of the Cr.P.C,

1973. The said appeal was heard by the learned Additional Sessions Judge (Court

No.4) and by his judgment dated 28.08.2019 passed in Criminal Appeal No.17 of

2018, the learned Additional Sessions Judge held that the judgment and order of

conviction and sentence passed by the trial court suffered from no infirmity and the

said judgment did not call for any interference in appeal. Learned Additional

Sessions Judge, therefore, dismissed the appeal affirming the conviction and

sentence of the petitioners and directed them to pay the fine by appearing before

the trial Court.

[11] Heard Mr. H.K. Bhowmik, learned counsel appearing for the

petitioner and Mr. D. Deb, learned counsel appearing along with Mr. S. Pal,

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advocate for respondent No.1. Mr. S. Debnath, learned Addl. P.P represents the

State respondent.

[12] Counsel appearing for the accused petitioners contends that service

of demand notice is a sine qua non for prosecution under section 138 NI Act. But

the learned Additional Sessions Judge did not consider the defence argument that

no demand notice was served on accused Ratna Debnath before filing the

complaint. Counsel submits that the amount of advance paid by the original

complainant was actually forfeited due to his failure to abide by the terms of the

contract. It was contended by Mr. Bhowmik, learned counsel that for redressal of

his grievances, the complainant should have filed a civil suit in the competent court

instead of prosecuting the accused persons under section 138 NI Act. Counsel

contends that PW-2 who supported the case of the complainant was an interested

witness because he also brought same allegations against the accused persons and

as such he was interested in their prosecution and punishment. Counsel has argued

that the accused persons have been falsely implicated in the present case and the

impugned judgment should be set aside.

[13] Mr. D. Deb, learned advocate while opposing the contentions of Mr.

H.K. Bhowmik, counsel of the petitioners has submitted that the accused persons

have admitted the execution of the contract and they have also admitted that they

received Rs.1,00,000/- on behalf of accused real estate company from the

complainant as an advance for selling out a plot of land measuring one and half

ganda. Therefore, they had an existing debt to the complaint for which they issued

the impugned cheque and complainant by adducing sufficient evidence established

before the trial court that despite presentation of the cheque at the bank more than

once, the cheque was dishonoured for non availability of fund in the account of the

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accused. Counsel contends that presumption under section 139 NI Act arose

against accused persons in the given facts and circumstances of the case and the

accused persons could not discharge the presumption by adducing sufficient

evidence. Therefore, the learned trial court held them guilty and convicted and

sentenced them. It has been argued by the counsel that there is no error in the

judgment of the trial court which was rightly upheld by the learned Additional

Sessions Judge. Counsel of the respondent complainant, therefore, urges for

affirming the impugned judgment by dismissing the present petition.

[14] With regard to the burden of the accused in discharging the

presumption under section 139 NI Act, counsel has relied on the judgment of the

Gauhati High Court in Manik Lodh vs. State of Assam & Anr. reported in

(2008) 1 GLR 804 wherein the Gauhati High Court has held that where a person

holds a cheque it is obligatory for the court to draw a presumption under section

139 NI Act that the holder of the cheque has received it for discharge, in whole or

in part of a debt or other liability and once such presumption is raised, burden shifts

to the accused to prove that the drawee did not hold the cheque in discharge of

debt or liability of the drawer. The Gauhati High Court held that such presumption

has to be rebutted by proof and not by mere explanation, howsoever plausible such

an explanation may be. Counsel has relied on paragraph 20 of the judgment which

reads as under:

"20. To sum up, when a person holds a cheque, section 139 makes it, as already indicted above, obligatory for the Court to presume that the holder of the cheque has received the cheque for discharge, in whole or in part, of a debt or other liability.

Once such presumption is raised, the burden shifts to the accused to prove that the drawee did not hold the cheque in discharge of debt or liability of the drawer. When a presumption of fact is raised, the liability of the accused is treated to have been discharged if the explanation offered by the accused is reasonable or probable. But in the case of presumption of law,

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the accused has the onus of showing not only that his explanation is reasonable and probable, but also that his explanation is a true one. The expression unless the contrary is proved, which occur in section 139, makes it clear that the presumption has to be rebutted by proof and not by a mere explanation, howsoever plausible such an explanation may be. A fact is said to be proved, I may recall, when its existence is directly established, or when, based on the materials placed before it, the court finds its existence to be so probable that a reasonable man ought to act on the supposition that it exists."

[15] Admittedly, accused Bankim Chowdhury was the Chief Managing

Director and accused Ratna Debnath was the Accounts Director of Tripura Real

Estate Constructions Limited, a company registered under the Companies Act,

1956. By appearing before the court as DW-1 and DW-2 respectively, they have

asserted that their company came out with an advertisement published in a leading

daily namely, Dainik Sambad whereunder the company offered sale of land in plots

at various places at Agartala and in response to the said advertisement,

complainant agreed to purchase a land and paid a sum of Rs.1,00,000/- as advance

after executing a written agreement with the company. It is also stated by the said

two accused that as the Managing Director and the Accounts Director of the

company, they were authorized to operate the accounts of the company.

[16] They have not even specifically denied their signatures on the

cheque (Exbt.1). The return memo issued from the United Bank of India, the

banker of the complainant respondent No.1 whereby the cheque was returned to

IndusInd bank for insufficient funds in the accounts of the petitioners has also been

proved as Exbt.2. It is no case of the convict appellants that they have returned the

advance taken from the complainant respondent by any other means. Admittedly,

despite execution of written agreement between the parties and receipt of advance

by the appellants, no land was transferred to the complainant respondent in terms

of such agreement. DW-2 Ratna Debnath who is one of the convict appellants has

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categorically stated in her cross examination that due to internal problems of

Tripura Real Estate Constructions Limited (convict appellant No.1), the agreement

for sale of land to the complainant respondent could not be materialised. She did

not attribute any fault to the complainant respondent for non execution of the said

agreement.

[17] Situated, thus, presumption under section 139 of the NI Act arises

against the convict appellants. Obviously, the convict appellants could not raise a

probable defence to create doubts with regard to the existence of such debt or

liability. Rather, it is the admitted position of the case that Rs.1,00,000/- was

received by the appellants as advance from the complainant respondent for transfer

of land in his favour for a price of Rs.7,00,000/- in terms of the agreement

executed between the parties. It has also been admitted that neither any land was

transferred to the complainant respondent nor the advance was refunded to him

and as stated, DW-2 in her cross examination, has attributed the liability to convict

appellant No.1 for non implementation of the terms of the agreement. In her cross

examination she asserted as under:

"I know one agreement was made with Sri Bankim Chowdhury by the complainant of NI 131 of 2012 and the complainant of NI 132 of 2012. Two separate agreement was made. As per the agreement amount of Rs. 1 lakh was paid by both the complainant. Subsequently, due to some internal cause of Tripura Real Estate Construction Ltd the agreement were not materialized."

[18] The main ground of attack to the prosecution case is that even

though appellants No.2 and 3 were signatories of the impugned cheque, no

demand notice was issued to convict appellant No.2 Ratna Debnath. With regard to

service of notice, the appellant No.2 Bankim Chowdhury in his examination in chief

had asserted that though his notice was addressed to his address, the notice was

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not served on him. But in his cross examination, he has categorically stated that

despite receiving the notice he did not give any reply to the complainant

respondent. He made the following statement before the court in his cross

examination:

"It is a fact that I have received the demand notice from the complainant U/S 138 of NI Act. It is a fact that after receiving the notice I have not given any reply either to Sri Arun Kr. Roy or Sri Subal Ch. Das."

[19] Therefore, the contention that the appellant No.2 did not receive

any demand notice does not gain ground. Now the question which falls for

consideration is whether prosecution of convict appellant No.2 Ratna Debnath was

lawful without service of demand notice on him. In the complaint filed under

section 138 NI Act, complainant has impleaded Tripura Real Estate Constructions

Limited as accused No.1 and its Chief Managing Director Bankim Chowdhury as

accused No.2 and Accounts Director Ratna Debnath as accused No.3. In their

defence, DWs have admitted that as Chief Managing Director and Accounts

Director, they were authorized to operate the accounts of the company. Admittedly,

as officers of the appellant company they were aware of the fact that advance of

Rs.1,00,000/- was received from the respondent for sale of land to him and the

company had an enforceable debt to the complainant as per the terms of

agreement. No land was transferred to him nor the advance was refunded to him.

In these circumstances, the liability on account of dishonour of the impugned

cheque primarily falls on the drawer company which is a corporate liability and

convict appellants No.2 and 3 as the officers of the company are vicariously liable

for such offence, the principal accused is the company. In these circumstances,

service of demand notice on the Chief Managing Director of the accused company is

sufficient. Accused appellant No.2 Ratna Debnath who is the Accounts Director of

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the company cannot escape her liability by saying that no demand notice was

issued to her.

[20] Having appreciated the materials available on record and the

submissions of counsel representing the parties and having examined the case in

the light of the judgment cited to supra, this court is of the view that insofar as the

conviction of the appellants under section 138 NI Act is concerned, there is no

ground to interfere with their conviction. Resultantly, their conviction affirmed by

the Additional Sessions Judge in Criminal Appeal No.17 of 2018 is upheld.

[21] Insofar as imposition of sentence is concerned, it appears that the

trial court sentenced each of the three convicts including the company to a fine of

Rs.50,000/- and in default to simple imprisonment for 15 days. The learned trial

Judge besides awarding separate default sentence to convict appellant Bankim

Chowdhury and convict appellant Ratna Debnath also ordered that the default

sentence of the company would also be suffered by Bankim Chowdhury and Ratna

Debnath as representatives of the company. Learned trial Judge committed an error

by awarding default sentence to the company as the company cannot be sentenced

to imprisonment. Moreover, each of the other two convict appellants were awarded

fine and default sentence separately. Therefore, it was not correct to impose the

default sentence of the company on them. To that extent, the sentence awarded to

the company is modified.

[22] Resultantly, the impugned judgment passed by the learned

Additional Sessions Judge in Criminal Appeal No.17 of 2018 stands affirmed subject

to the above modification of the sentence awarded to the company (convict

appellant No.1). The company shall pay a fine of Rs.50,000/- to complainant

respondent No.1. Convict appellant No.2 Bankim Chowdhury shall pay Rs.50,000/-

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and convict appellant No.3 Ratna Debnath shall also pay fine of Rs.50,000/- to the

claimant respondent and in default Bankim Chowdhury and Ratna Debnath shall

suffer SI for a term of 15 days.

[23] In terms of the above, the criminal revision petition is disposed of.

[24] The convict appellants are directed to deposit the fine at the trial

court (the Additional Chief Judicial Magistrate, West Tripura, Agartala) within a

period of one month from today failing which the trial court shall issue appropriate

process in accordance with law to compel the appearance of convict appellant

Bankim Chowdhury and Ratna Debnath and commit them to prison to suffer the

default sentence and the fine awarded to the company, if not deposited, shall be

realized from the estate of the company. Fine on realization be paid in whole to

respondent Sri Subal Chandra Das.

[25] Send down the LCR. Pending application(s), if any, shall also stand

disposed of.

JUDGE

Rudradeep

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