Shri Manik Lal Das vs Shri Badal Ch. Dey
2022 Latest Caselaw 284 Tri

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                     HIGH COURT OF TRIPURA
                          AGARTALA
                   CRL. REV P. NO.83 OF 2017

   Shri Manik Lal Das,
   Son of Late Kanai Lal Das,
   Resident of Daspara,
   P.S. & Sub-Division- Belonia,
   District- South Tripura.

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

                    Vs.

   1. Shri Badal Ch. Dey,
   Son of Late Sunil Kr. Dey,
   Resident of West Bank of Mohadeb Dighi,
   P.O & P.S.- R.k. Pur, Sub-Division-Udaipur,
   District-Gomati.

   2. The State of Tripura.
                                            ......Respondent(s)

For the Petitioner(s) : Mr. J. Bhattacharjee, Advocate.

Mr. S. Ghosh, Advocate.

For the Respondent(s) : Mr. R. Datta, P.P.

Mr. A. Acharjee, Advocate.

Date of hearing and delivery of Judgment & Order : 10.03.2022.

Whether fit for reporting : NO.

HON'BLE MR. JUSTICE T. AMARNATH GOUD

JUDGMENT AND ORDER(ORAL)

This instant criminal revision petition has been filed

under Section 397 read with Section 401 of the Code of

Criminal Procedure, 1973, against the impugned judgment

dated 04.12.2017 passed by the learned Addl. Sessions

Judge, Gomati Judicial District, Udaipur, in Case No.

Criminal Appeal No.08(01) of 2017, whereby, the learned

Appellate Court (learned Addl. Sessions Judge, Gomati

Judicial District, Udaipur) upheld the conviction and

sentence dated 19.12.2016 passed by the learned Chief

Judicial Magistrate, Gomati Judicial District, Udaipur, in C.R.

(N.I) 01 of 2016, whereby, the learned Chief Judicial

Magistrate, Gomati Judicial District, Udaipur, convicted the

petitioner for committing an offense punishable under

Section 138 of the Negotiable Instrument Act, 1881, and

sentenced him to suffer rigorous imprisonment for 1(one)

year and to pay a fine of Rs.3,00,000/- and with default

stipulation.

2. The brief facts of the prosecution case are that

respondent No.1 as complainant, filed a complaint before

the learned Chief Judicial Magistrate, Gomati Judicial

District, Udaipur, alleging inter alia that respondent No.1

had a good relationship with the petitioner, and they were

conversant with each other for one and half year and had

monitory transaction between them in respect of the

business. Respondent No.1 has been carrying coal from

Meghalaya and supplying the same to the Brickfield of the

petitioner, namely, M/S Joy Ram Industry. For payment of

the cost of coal, the petitioner issued a cheque bearing

No.185505 on 25.11.2015 in favour of respondent No.1 for

discharging his debt and liability for Rs.1,50,000/- drawn on

SBI, Belonia, Branch Belonia, South Tripura. On

01.12.2015, respondent No.1 deposited the said cheque in

his account No.0462010023515 at UBI, Udaipur Branch, for

encashment, but on 02.02.2015 the said cheque was

returned due to insufficient funds. Thereafter, on

07.12.2015, the respondent No.1 issued a Demand Notice

to the petitioner. But, the petitioner did not pay the money.

Hence, he lodged the complaint against the petitioner

before the learned Chief Judicial Magistrate, Gomati Judicial

District, Udaipur, and the same was registered and marked

as C.R.(N.I) No. 01 of 2016.

3. On receipt of the aforesaid complaint, learned

Chief Judicial Magistrate, Gomati Judicial District, Udaipur

took cognizance and issued summons upon the petitioner.

In furtherance of the summons, the petitioner appeared

before the learned Chief Judicial Magistrate, Gomati Judicial

District, Udaipur, and pleaded not guilty.

4. To prove the case, the complainant side

examined as many as 3(three) witnesses. On the other

hand, the petitioner adduced himself as a defense witness.

After examination of the witnesses, and hearing both the

parties, learned Chief Judicial Magistrate, Gomati Judicial

District, Udaipur vide Judgment dated 19.12.2016,

convicted the petitioner for committing an offense

punishable under Section 138 of Negotiable instrument Act,

1881 (N.I. act for short), and sentence him to suffer

rigorous imprisonment of 1 year and to pay a fine of

Rs.3,00,000/- and in default of payment of fine, to suffer

further period of 6(six) months rigorous imprisonment, for

committing of an offense punishable under Section 138 of

N.I. Act.

5. Being aggrieved and dissatisfied with the

judgment of conviction and sentence dated 19.12.2016

passed by the learned Chief Judicial Magistrate, Gomati

Judicial District, Udaipur, in C.R. (N.I) of 01 of 2016, the

petitioner preferred an appeal before the learned Sessions

Judge, Gomati Judicial District, Udaipur. The said appeal

was registered as Criminal Appeal No.08(1) of 2017. The

same was transferred before the learned Addl. Sessions

Judge, Gomati Judicial District, Udaipur for disposal. After

hearing both the parties, the learned Appellate Court vide

impugned judgment dated 04.12.2017 dismissed the

appeal.

6. Being aggrieved by the impugned judgment

dated 04.12.2017, passed by the learned Addl. Sessions

Judge, Gomati Judicial District, Udaipur, in Criminal Appeal

No.08(1) of 2017, the petitioner herein preferred the instant

criminal revision petition and prayed for the following

reliefs:-

"Issue a Rule calling upon the respondents to show cause as to why the impugned Judgment dated 04.12.2017 passed by the learned Additional Sessions Judge, Gomati Judicial District, Udaipur, in Case No. Criminal Appeal 08(01) of 2017, whereby the learned Appellate Court (learned Additional Sessions Judge, Gomati Judicial District, Udaipur) upholding the conviction & sentence dated 19.12.2016, passed by the learned Chief Judicial Magistrate, Gomati Judicial District, Udaipur, in C.R.(N.I) 01 of 2016, whereby learned Chief Judicial Magistrate, Gomati Judicial District, Udaipur, convicted the petitioner for committing offence punishable under Section 138 of the Negotiable Instruments Act, 1881, sentenced him to suffer Rigorous imprisonment of 1(one) year and to pay a fine of Rs.3,00,000/- (Rupees three Lac) and in default of payment of fine, he should suffer further period of 6(six) months rigorous imprisonment, shall not be quashed/set aside, and acquit the petitioner.

ii) Call for the records appertaining to this petition;

iii) In the interim an order staying/suspending the operation of the impugned sentence passed in

judgment dated 19.12.2016 by the learned Chief Judicial Magistrate, Gomati Judicial District, Udaipur, in C.R.(N.I.) 01 of 2016, whereby learned Chief Judicial Magistrate, Gomati Judicial District, Udaipur, convicted the petitioner for committing offence punishable under Section 138 of the Negotiable instrument Act, 1881, sentenced him to suffer rigorous imprisonment of 1(one) year and to pay a fine of Rs.3,00,000/-(Rupees three lac) and in default of payment of fine, he should suffer further period of 6(six) months rigorous imprisonment, which was upheld by the learned Additional Sessions Judge, Gomati Judicial District, Udaipur, in its impugned Judgment dated 04.12.2017 passed in Case No. Criminal Appeal 08(01) of 2007 till disposal of the instant criminal revision petition."

7. Heard Mr. J. Bhattacharjee, learned counsel appearing

for the petitioner as well as Mr. A. Acharjee learned counsel for

respondent No.1, and Mr. R. Datta learned P.P. appearing for

respondent No.2.

8. On the point of proof of service, Mr. Bhattachajee,

learned counsel appearing for the petitioner has relied on the

notice, postal receipt, acknowledgment card, and the postal

track information, wherein, it is categorically signed as Laxmi

Saha Das and Lakshmi Saha (Das). In view of the disputed

question of facts with regard to the very service of the notice

on the wife of the accused person, this Court is not in a

position to appreciate the evidence since the same has been

already been examined by the Trial Court and reasonable

findings have been given with regard to the effective service.

9. Mr. Bhattacharjee, learned counsel appearing for the

petitioner has further placed reliance upon the judgment

passed by the Apex Court in M.D. Thomas Vs. P.S. Jaleel

and anr., reported in (2009) 14 SCC 398 to say that the

service on the wife is not equal to service on the

husband/addressee.

10. This Court has no hesitation to say that the above-

mentioned judgment, M.D. Thomas(supra) is not related to

the facts of the instant case since the very service itself on the

person has been denied on the strength of the signature. It is

verified from the record that even in the evidence before the

Court below, the P.W.1 has not been put to cross-examination

with regard to the postal acknowledgment and the signatures

made therein with regard to the receipt of the legal notice.

Further, there was no specific question by way of the cross with

regard to the point of legally enforceable debt. Since the

petitioner herein has failed to make out his case before the

Courts below, this Court has no hesitation to say that in the

revision, appreciation of the factual issues is not permissible.

11. Accordingly, the instant revision petition is dismissed

confirming the orders dated 04.12.2017 passed by learned

Additional Sessions Judge, Gomati Judicial District, Udaipur in

case No. Criminal Appeal No. 08(01) of 2017 upholding the

conviction and sentence dated 19.12.2016 passed by the

learned Chief Judicial Magistrate in Gomati Judicial District,

Udaipur, in C.R.(N.I.) 01 of 2016.

JUDGE

suhanjit