Smt. Tulu Rani Das (Majumder) vs Sri Prabir Majumder
2022 Latest Caselaw 586 Tri

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                       HIGH COURT OF TRIPURA
                             AGARTALA
                      CRL. REV.P NO.42 OF 2020

   Smt. Tulu Rani Das (Majumder),
   W/o Sri Manik Lal Majumder,
   Resident of Ananya Complex,
   Kunjaban Colony, P.O.-Kunjaban,
   P.S. East Agartala, District-West Tripura.

                                              ......... Petitioner(s)

                      Vs.

   1. Sri Prabir Majumder,
   S/o- Lt. Haripada Majumder,
   R/O- Nandan Nagar, Opposite to Auxilium High School,
   P.O. Bankumari, P.S.-East Kotowali,
   Agartala, West Tripura.


   2. The State of Tripura,
   To be represented by the learned Public Prosecutor,
   Hon'ble High Court of Tripura.

                                        ......The respondent(s)

For the Petitioner(s) : Mr. P. Roy Barman, Sr. Advocate.

Mr. S. Bhattacharjee, Advocate.

Mr. K. Nath, Advocate.

For the Respondent(s) : Mr. S. Lodh, Advocate.

Mr. S. Debnath, Addl. P.P.

Date of hearing             : 02.06.2022.

Date of delivery of
Judgment & Order            : 15.06.2022.

Whether fit for reporting : YES.



          HON'BLE MR. JUSTICE T. AMARNATH GOUD
                        JUDGMENT AND ORDER

This Criminal revision petition has been filed under Section

397(1) of Cr.P.C. read with Section 401 of Cr.P.C. against the

judgment dated 17.02.2020, passed by the learned Sessions

Judge, West Tripura, Agartala, in Crl. Appeal No.42/2017,

dismissing the appeal under Section 378(2) of Cr.P.C. against

the judgment dated 22.11.2017, passed by the learned Addl.

Chief Judical Magistrate, West Tripura, Agartala in Case No. NI-

79/2012, whereby acquitting the respondent-Prabir Majumder,

from the charges framed under Section 138 of NI Act, 1881.

2. The facts of the case in brief, which may be relevant

for the present purpose and manifest on the record are that the

petitioner herein lodged a complaint under Section 138 of the

NI Act, 1881 against the respondent No.1. In the complaint,

the petitioner stated that she, her brother Dulal Das, and Sister

Jhulu Rani Das were the joint owner of land measuring 2.09

acres under R.S. Khatian No.113 Mouja-Guarchand, and the

accused person herein as the respondent agreed to purchase

the land. After negotiation, the price was settled to

Rs.5,00,000/-. The petitioner and two others executed 3(three)

sale deeds in favour of the respondent herein and those sale

deeds were presented before the Sub-Registrar, Sabroom for

registration. Due to objection raised by one Pulak Das, Sub-

Registrar refused to register the sale deeds and the matter was

brought to the notice of the District Registrar for his opinion.

For this reason, the sale deeds were pending for registration.

Then the respondent No.1 requested the petitioner to return

Rs.5,00,000/- on the condition that, he would repay the same

amount at the time of registration. Accordingly, the

complainant returned the said amount of Rs.5,00,000/- to the

accused on 15.11.2011 in cash as against the swearing of one

affidavit by the accused. After some time, District Registrar

directed the Sub-Registrar, Sabroom to make registration of

those 3(three) sale deeds. Thereafter, on 29.02.2012, the

respondent through his Manager sent Rs.1,00,000/- in cash

and issued one account payee cheque bearing No.116007,

dated 29.02.2012, issued by the respondent in her favour for

encashment to the Branch Manager, SBI, Kunjaban Branch.

Thereafter, the Branch Manager, SBI Kunjaba Branch sent the

cheque to IDBI Bank Limited, Agartala Branch but the Branch

Manager IDBI Bank, vide letter, dated 03.05.2012, informed

the Branch Manager, SBI Kunjaban Branch, that, the cheque

could not be honoured due to insufficiency of fund in the

account of the drawer of the cheque. Thereafter, the petitioner

on 25.05.2012, by registered letter with A.D. intimated him

and demanded payment within 15 days. But the respondent

No.1 did not make payment. On the contrary, after receiving

the information of the dishonouring of the cheque by the

Banker, the respondent issued a legal notice to the petitioner

asking for the handover of the vacant possession of the land

described in the sale deeds as per the commitment.

3. It is pertinent to mention here that, in the complaint,

it was also stated that, in Civil suit bearing No.TS-25/2011

which was pending in the Court of Civil Judge, Senior Division

in between Pulak Das and the Respondent & others, the

respondent No.1 in a written statement stated that he

purchased the land described in those sale deeds and he had

got possession of the land.

4. The complaint lodged by the petitioner under Section

138 of NI Act was registered as Case No. NI-9/2012. The

accused person, respondent herein, duly appeared before the

Court of learned Addl. CJM, West Tripura, Agartala. Cognizance

of offence was taken against him under Section 138 of the NI

Act.

5. The respondent was examined under Section 251 of

Cr.P.C. and the respondent pleaded not guilty and sought to be

tried.

6. In the course of the trial, the petitioner adduced

herself and one Dulal Das as witnesses, and both of them were

examined and cross-examined. They also exhibited some

documents.

7. The respondent adduced himself as a witness and he

was examined and cross-examined. The respondent did not

produce any documentary evidence.

8. Thereafter, the learned Trial Court after hearing both

the parties delivered judgment, dated, 22.11.2017, acquitting

the respondent from the charge framed against him under

Section 138 of NI Act, 1881.

9. Against the Judgment dated 22.11.2017, passed in NI-

79/2012, the petitioner preferred an appeal before the learned

Sessions Judge, West Tripura under Section 378(2) of Cr.P.C.

vide Criminal Appeal No-42/2017. After hearing both sides, the

learned Sessions Judge, vide Judgment dated 17.02.2020,

dismissed the Criminal Appeal No.42/2017, upholding the

judgment dated 22.11.2017.

10. Thereafter, the petitioner herein instead of filing the

Criminal revision petition challenging the above said impugned

judgment, preferred criminal appeal with special leave petition

in time before the Hon'ble High Court of Tripura which was

registered and numbered as Crl. L.P No.01/2020 in Criminal

Appeal No.5 of 2020.

11. Thereafter, the Hon'ble High Court, vide order dated

07.10.2020, passed in Crl.LP. No.01 of 2020 in terms of

submission of the learned counsel of the petitioner allowed to

withdraw the said appeal with the liberty given to the petitioner

to file an appropriate petition.

12. Being aggrieved and dissatisfied by the Judgment

dated 17.02.2020, passed by the learned Sessions Judge, West

Tripura, Agartala, in case No Criminal Appeal No.42/2017, the

petitioner preferred the instant Criminal Revision Petition and

prayed for the following reliefs:-

"i. Admit the instant Criminal Revision Petition, ii. Call for records, iii. Issue notice upon the respondent, iv. Heard both sides and v. Allow the instant Criminal Revision Petition filed under Section 397(1) Cr.P.C. read with Section 401 of Cr.P.C. by setting aside the judgment, dated, 17.02.2020, passed in Crl. Appeal No.42/2017 by the learned Sessions Judge, West Tripura, affirming the judgment dated 22.11.2017, passed in NI-79/2012, by the learned Addl. Chief Judicial Magistrate, West Tripura, Agartala by holding, that the charge framed against the

respondent-Prabir Majumder, U/S 138 of NI Act, 1881, had been well established making him punishable under the aforesaid charge.

vi. Pass any further order/orders as may be considered fit and proper."

13. Heard Mr. P. Roy Barman, learned Sr. counsel assisted

by Mr. S. Bhattacharjee, learned counsel appearing for the

petitioner herein as well as Mr. S. Lodh, learned counsel

appearing for the accused-respondent No.1, and Mr. S.

Debnath, learned Addl. P.P. for the State-respondent.

14. In the facts of the present case, here it is

pertinent to reproduce questions No.11, 12, and 13 of the

examination of the accused person under Section 313 of

Cr.P.C., which are reproduced herein-under:-

"Q. No.11:- P.W.2 further stated that after receiving cash money of Rs.One lakhs from you and the cheque amounting to Rs Four Lakh they confirmed the physically and legally possession over the land and the registration was done on 29.2.12 and you took full possession over the land and applied before the court Revenue Authority for mutation.

What have you got to say in this respect?

Ans:- Yes it is correct, no possession was handed over. Mutation was not obtained till date.

Q. No.12:- P.W.2, also stated that you intentionally and knowing fully that you have insufficient fund in your account issued the cheque to P.W.1 in the to excise fraud.

What have you got to say in this respect?

Ans:- False.

Q. No.13:- Do you have anything else to say about this case?

Ans:- One lakh rupees taken by complainant. But the land was not given in my possession."

15. Here we may also refer to the examination-in-chief of

the complainant, Smt-Tulu Rani Das(Majumder) supported by

an affidavit, which is as follows:-

"I, Smt. Tulu Rani Das (Majumder), W/O Shri Manik Lal Majumder of Ananya Complex, Kunjaban Colony, P.O. Kunjaban, P.S. East Agartala by profession house wife, aged 53 years on oath say as follow:-

1. That myself and my brother Dulal Das and my sister Jhilu Rani Das jointly being owners in profession of land under Mouja Guarchand made an approach to the accused person to sell the land under R.S. Khatian No. 113, area 2.09 acres at a settled price of 5,00,000/- and accused person had agreed to purchase the said land at the settled price of Rs. 5,00,000/- and accordingly accused person paid the entire consideration money of Rs. 5,00,000/- to us in cash and accordingly we i.e. myself and my brother and sister jointly being the truefull owners of the said land had executed 3 nos. of sale deeds in favour of accused person and presented those sale deeds before the Sub-Registrar, Sabroom for its registration. One Shri Pulak Das raised objection to register of those sale deeds and accordingly Sub-Registrar sent those sale deeds before the District Registrar for his opinion in the matter of registration.

These are true to my knowledge.

2. That due to objection raised by Pulak Das those sale deeds were pending for registration. Than accused person requested to me to return back Rs. 5,00,000/- on condition that he will repay the same at the time of registration. After some period District Registrar directed the Sub-Registrar, Sabroom to make registration of those sale deeds and Sub- Registrar, Sabroom informed us and accused person.

Accordingly on 29.02.2012 accused person through his

manager Shri Dipak Majumder sent Rs. 1,00,000/- in cash and one account payee cheque amounting to Rs. 4,00,000/- vide cheque No. 116007 dated 29.02.2012 amounting to Rs. 4,00,000/- in favour of me under I.D.B.I. Bank Ltd.

On receipt of cash money of Rs. 1,00,000/- and cheque amount of Rs. 4,00,000/- in total Rs. 5,00,000/- myself, my brother and sister appeared before the Sub- Registrar, Sabroom and admitted the execution of those sale deeds and those sale deeds were duly registered and on that date we delivered possession to the accused person and since then the accused person has been possession his purchased land as truefull owner in possession.

These are true to my knowledge.

3. That therefore, I presented the said cheque in question which was issued by accused person to me for its encashment to the Branch Manager, S.B.I., Kunjaban Branch and Branch Manager, S.B. I., Kunjaban Branch sent the said cheque to I.D.B.I. Bank Ltd., Agartala branch and the Branch Manager, I.D.B.I. Vide his letter dated 03.05.2012 informed the branch Manager, S.B.I., Kunjaban branch, Agartala that said cheque was dishonoured due to insufficiency of fund in his account. Branch Manager, S.B.I., Kunjaban Branch vide his letter dated 11.05.2012 informed the said matter to me for dishonour of said cheque.

These are true to my knowledge.

4. That I on 25.05.2012 by a registered post with A/D issued a demand of notice for payment of cheque amount to me within 15 days but in spite of receipt of said notice the accused person did not take payment till date. Moreover, the accused person on receipt of the said notice dated 08.06.2012 through his counsel issued a notice upon the information that there is a condition to handover the vacant possession of the said land as described in the sale deed in question as per my commitment by way of affidavit dated 29.02.2012 before the Notary Public, Agartala, West Tripura. Actually in that affidavit there is no averment to again handover the possession of the land in deeds to the accused person.

Actually in that affidavit I nowhere stated that I or my brother or sister will give possession again to the accused person prior to encashment of cheque.

These are true to my knowledge.

5. That a civil suit bearing no. T.S. 25/2011 is pending in the court of Civil Judge (Sr. Div.) in between Shri Pulak Das as plaintiff and accused person as defendants. Accused person in that civil suit by filing W.S. stated that the purchased land in question by those sale deeds at the time of execution of those deeds and got possession, so the question of handling over again possession of those land in question as mentioned in those sale deeds does not arise.

These are true to my knowledge.

6. That the cause of action of the present case has arisen on and from 11.06.2012 i.e. the date of receipt of response of the accused person through his counsel Pinky Saha (Banik) on receipt of demand notice issued by me on 15.05.2012.

These are true to my knowledge.

7. That I have submitted the following documents:- I. Affidavit of Sri Prabir kr, Majumder before Notary, Agartala dated 15.11.2011.

II. Cheque no. 116007 dated 29.02.2012 for Rs. 4,00,000/- issued by Prabir Majumder in favour of Smt. Tulu Rani Das (Majumder) under I.D.B.I. Bank Ltd.

III. Letter of Branch Manager, Kunjaban Branch, S.B.I. dated 11.05.2012 addressed to Smt. Tulu Rani Das with return memo issued by I.D.B.I. Bank Ltd. Dated 03.05.2012.

IV. Demand notice with postal receipt dated 25.05.2012 issued by Tulu Rani Das (Majumder) to Prabir Kr. Majumder in 2 addresses.

V. Reply of Demand Notice of Sri. Prabir Majumder through his counsel Pinky Saha (Banik), Advocate, dated 08.06.2012."

16. In the cross-examination, the complainant as P.W.1

stated thus:-

" I have submitted my affidavit and the compliant petition after going through the contents. The notice was also issued as per my instruction. I have not mentioned in my demand notice that the cheque was dishonoured for

reason code 17'alteration require drawers authentication'. Pulak Das in my Khurtoto brother. At this juncture the affidavit dated 29.02.12 is exhibited as Exbt.A on prayer of the defence(Subject to objection by the complainant) The defence counsel drawn attention of the witness to another affidavit dated 15.11.11. sworn by her and on her identification the same is marked as Exbt.B. Prabir Kr. Mazumder never took any loan from me. I do not know what has been written in my complaint and it appears that it has been wrongly mentioned in my complaint that the accused took loan of Rs.5,00,000/- from me. I have also wrongly mentioned in my demand notice that accused took loan of Rs.5,00,000/- from me. The accused gave reply through his Advocate.....

I have mentioned in my notice that ht cheque was dishonored for insufficient fund. I do not know whether the accused asked his banker IDBI Bank, Kaman Chowmuhany Branch to stop payment of the cheque given to me on 26.03.12. It is not a fact that my deposition by way of affidavit is false.

W.V. I deposited the cheque only after handing over possession of the land to the accused person. I also informed the accused before depositing the cheque.

It is not a fact that I did not inform the accused before depositing the cheque and it is also not a fact that I deposited the cheque after delivery possession of the land. It is not a fact that the accused did not get possession of the land form our side. It is not a fact that there is no legal ground fro me to have grievance against the accused persons and it is also not a fact that the cheque was not dishonoured after proper presentation. It is not a fact that the cheque was not encashed because the accuse did not get possession of the land. It is not a fact that I am depositing falsely."

17. Here it is also pertinent to refer to the Ext-A,

declaration on oath by way of affidavit by Smt. Tulu Rani

Das(Majumder), the petitioner-complainant herein which is

reproduced herein-under:-

" That we the deponents jointly sold 2.09 acres of land of R.S. Khatian No.113, Hal Plot No.2637, 2682 and 2679 of Mouja-Goachand of Sri Prabir Kumar Majumder, S/o

Late Haripada Majumder of Math Chowmuhani, Agartala and accordingly 3 Nos of sale deed was written and these sale deeds were executed by us in favour of said-Prabir Kumar Majumder and presented those deeds before the Sub- Registrar, Sabroom on 01.11.2011 for the purpose of Registration, but due to objection raise by one-Pulak Das of Harina, those sale deeds were not registered on that day and sent those deeds to the District Registrar, South Tripura for his opinion.

These are true to my knowledge.

2. That due to non-registration and for urgent requirement of money as per approached by said Prabir Kumar Majumder, I Smt. Tulu Rani Das (Majumder)on 15.11.2011 paid Rs.5,00,000/- to said Sri Majumder in cash with the consent of other deponents on condition that he will repay the said amount at the time of registration and in the matter he sweared an affidavit.

These are true to my knowledge.

3. That I Smt. Tulu Rani Das (Majumder) subsequently told to Sri Majumder that we the deponent will appear befoe the Sub-Registrar today for the purpose of registration and requested Sri Majumder to repay the said money and accordingly-Sri Majumder without consent issued the cheque bearing No. 116007- dated 29.02.12, of Rs.4,00,000/-(Rupees Four lakh) under IDBI, Bank Agartala-Branch in the name of employee-Dipak Majumder to hand over the said cheque to us and to hand over Rs.1,00,000/-(Rupees one lakh) in cash and we with full satisfaction have received the said cheque and cash money from his employee Dipak Majumder These is true to my knowledge.

4. That we the deponents are giving undertaking that we shall hand over the possession of sold land in favour of Sri Prabir Majumder after such delivery of possession, we shall deposit the said cheque for its encashment.

We further receiving undertaking that prior to hand over the possession of the sold out land to Prabir Majumder, we shall not deposit the said Cheque in Bank for its encashment.

These are true to my knowledge."

18. The learned Chief Judicial Magistrate in order and

judgment dated 22.11.2017 passed in NI.79 of 2012 acquitted

the accused person herein and dismissed the complaint filed

under Section 138 of the NI Act on the ground that the legally

enforceable has not been proved. The lower Appellate Court

also confirmed the same. The present case is filed against

concurrent findings.

19. Mr. P. Roy Barman, learned Sr. counsel appearing for

the complainant-petitioner herein without highlighting the error

committed by the Courts below has only reiterated the

evidence which has already been appreciated by the lower

Court and the lower Appellate Court.

20. Mr. S. Lodh, learned counsel appearing for the

accused-respondent prayed to dismiss the same confirming the

order of the Courts below on the ground that legally

enforceable debt is not there and the property has not been

delivered. He argued that it is a legally enforceable debt. Sale

deed executed and possession delivered. Cheque issued

against sale by respondent got dishonored.

21. On perusal of the relevant documents and evidence on

record, it is evident that the complainant asserted that after

the registration of the Sale Deeds she and her co-sharers

handed over physical possession of the land to the accused

person herein. In her examination in chief on affidavit, the

complainant herein stated that on the date of registration of

those deeds itself they handed over such possession to the

accused person herein, by shifting their stand as made in the

complaint petition. In the cross-examination, the complainant

admitted that the accused person never took any loan from

her. She again volunteered during such cross-examination that

she deposited the cheque only after handing over possession of

the land to the accused so far. Even as on date if possession is

delivered, would immediately pay the cheque amount. Further

prayed to dismiss the Crl. Rev. Petition of concurrent findings.

22. Though the emphasis was given on the recital of

those three sale deeds (Exbt.B1, Exbt.C/1 and Exbt.D/1) to the

effect that from the date of execution of the deeds, the right,

title, interest, and possession of the sold-out lands were

transferred to the accused-person but same cannot be given

much importance for the reasons discussed in the later part of

this paragraph. Just before those recitals, it was also

mentioned in those sale deeds that the vendor duly received

Rs.7,00,000/- from the accused person and, if the said fact is

considered Exbt.B/1, C/1, and D/1, the entire claim of the

complainant will go away. It appears that the recitals of sale

deed are not tailor made but are cut paste.

23. Now, coming to the affidavits sworn by the parties, it

appears that the accused in his affidavit (Exbt.6) dated

15.11.2011 asserted that he had received Rs.5,00,000/- from

the complainant in urgent need of money with a further

assertion that when the deeds will be executed in his favour,

he will be responsible to make the payment. The said affidavit

to be executed after the registration of sale deeds were kept in

abeyance due to objection raised by one Pulak Das. This

affidavit no doubt supports the story of the complainant about

receiving back Rs.5,00,000/- by the accused, but on the same

day, the complainant also swore one affidavit under Exbt.B

asserting that as the sale deeds were not executed (actually it

would be 'not registered') due to such objection of Pulak Das,

she decided to return the money of Rs.5,00,000/- to the

accused. Accordingly, she had returned the same. However,

after about three months therefrom, the said complainant and

her two co-sharers again swore another affidavit on

29.02.2012 (Exbt.A) wherein they asserted that due to non-

registration of those Sale Deeds, said Rs.5,00,000/- was

returned to the accused on condition that he would repay the

same at the time of registration of those sale deeds. It was

also asserted by them that on that day they had received

Rs.1,00,000/- in cash and said disputed cheque of

Rs.4,00,000/- but they gave undertaking that they would first

hand over the possession of sold-out land in favour of the

accused and thereafter, they would deposit the said cheque for

encashment. Thus, from these affidavits, more particularly, as

per the affidavit under Exbt.A, it appears that the parties to the

agreement for sale, ultimately, shifted from their original

agreement due to changed circumstances of non-registration of

those deeds. They altered the terms of their contract in respect

of payment of money that it would be paid by the accused only

after possession of the purchased land was handed over to him

by the complainant. Such novation is permissible under Section

62 of the Indian Contract Act, 1872. But the complainant has

suppressed the said facts and brought a new story through her

complaint petition as indicated above. Unless the complainant

could show that possession was duly handed over after

registration of those sale deeds and thereafter the cheque was

deposited by her, she cannot claim any legally enforceable debt

in her favour to be discharged by the accused.

24. Finally during the course of the argument, Mr. P.

Roy Barman, learned Sr. counsel appearing for the

complainant-petitioner submitted that out of Rs.5,00,000/-,

Rs.1,00,000/- has already been received by the owner and the

remaining Rs.4,00,000/- is yet to be received. According to the

complainant, possession is already delivered and if the same is

denied, they have no objection to return Rs.1,00,000/-and take

back the possession of the property. The accused person

should be restrained from claiming the property if the

appropriate suit is initiated for cancellation of the sale deeds

and so on.

25. During the course of the argument, Mr. S. Lodh,

learned counsel appearing for the accused person submitted

that his amount of Rs.1,00,000/- is lying with the petitioner

since 2012 and the owner has not delivered the physical

possession of the property and as and when the property is

delivered, he has no objection to paying the remaining balance

of Rs.4,00,000/-. In alternate he further contended that The

owner-petitioner herein having received Rs.1,00,000/- in 2012

from the accused person, the respondent No.1 herein is

entitled to get interest on Rs.1,00,000/-. Learned counsel also

submits that they are not interested in the protracting the

litigation and will not claim any right over the property.

26. In view of the disputed question of facts with regard to

sale transaction and the issue of legally enforceable debt, this

Court is not inclined to interfere with the findings of the Courts

below and the order stands confirmed and the prayer in

revision stands rejected.

27. However, in order to put a quietus and to end this

litigation amongst the petitioner and the respondent, this Court

while appreciating the contention of both the learned counsel

which is made in all fairness, disposes of this instant revision

petition with the following directions:-

i) The owner/complainant shall return Rs.1,00,000/-

(Rupees one lakh only) to the purchaser/respondent with the

simple interest of 6 % per annum (from February 2012 till its

realisation). The same shall be payable within a period of

2(two) months from today i.e. on or before 15.08.2022.

ii) The purchaser/respondent on receipt of the said

amount shall forbear in claiming any right, title, and interest

upon the said property in the light of the sale deeds executed.

iii) The owner/complainant-petitioner is at liberty to

take over the possession of the property and if so advised file

appropriate suit for cancellation of sale deeds or any other

suitable legal proceeding to which the purchaser/respondent

shall have no objections and shall forbear in contesting.

28. This Court is conscious in passing the above

directions; though the subject matter of this present revision

petition revolves around deciding the legality of the lower Court

and lower Appellate Court order, but, keeping in view the

suggestions of the learned counsel representing both sides, and

to put a quietus to the litigation and also to maintain harmonial

relationship amongst the petitioner and the respondent, this

Court has passed the above order.

29. With the above observation and direction, this instant

revision petition is disposed of.

Send down the LCRs.

JUDGE

suhanjit