Tripura High Court
Sri Rajib Saha vs Sri Kalyan Majumder on 17 May, 2023
Page 1 of 6
HIGH COURT OF TRIPURA
AGARTALA
CRL. A NO.15 OF 2022
Sri Rajib Saha,
S/o- Lt. Tarit Kanti Saha,
R.O- Ramthakur Para, Belonia,
P.O. & P.S. Belonia, District- South Tripura,
Pin-799155, Aged about 48 years.
......... Appellant(s)
Vs.
1. Sri Kalyan Majumder,
S/o- Lt. Asutosh Majumder,
R/o- Vill- Shal Tilla, P.O & P.S.- Belonia,
District- South Tripura, Pin-799155.
2. Sri Samar Debnath,
S/o- Lt. Nishi Kanta Debnath,
R/o- Vill- Rabindra Palli Opposite of Bulbul Sangit Niketan,
P.O + P.S.- Belonia, District- South Tripura, Pin-799155.
....... Respondent(s)
For the Appellant(s) : Mr. A. Bhaumik, Advocate.
For the Respondent(s) : Mr. K. Nath, Advocate.
Date of hearing : 15.05.2023.
Date of delivery of
Judgment & Order : 17.05.2023.
Whether fit for reporting : NO.
HON'BLE MR JUSTICE T. AMARNATH GOUD
JUDGMENT AND ORDER
This present appeal has been filed under Section 378(4)
of the Criminal Procedure Code, 1973 against the Judgment and
Order dated 19.05.2022 passed in Case No.N.I. 04 of 2020 by
the learned Chief Judicial Magistrate, South Tripura, Belonia
whereby the learned Court below acquitted the respondents
from the offence committed under Section 138 of the Negotiable
Instrument Act, 1881.
2. The cause of action of his present appeal arose
when the appellant herein lodged a complaint before the learned
Chief Judicial Magistrate, South Tripura, Belonia which was
registered as Case No.N.I. 04 of 2020 inter alia stating that the
appellant is the proprietor of M/S Rajib Saha having his shop
near Jagannath Bari, Belonia. The appellant runs the business of
selling cement and the respondents were the partners of M/S
Jogmaya Builders. In the year 2018, the respondents purchased
cement from the appellant on various dates both in cash and in
credit, and out of the total amount of purchased cement
Rs.1,64,000/- remained unpaid by the respondents. Thereafter
on 16.10.2019, in discharge of the aforesaid debts and
liabilities, the respondents issued a cheque bearing No.008288
dated 16.10.2019 drawn on their bank account
No.1883102000000727 lying with the IDBI bank, Bankar Bazar
Branch, South Tripura, Belonia. The respondents further
requested the appellant to deposit the said cheque after 2(two)
months from the date of issue. On 04.01.2022, the appellant
deposited the said cheque in his bank i.e., the United Bank of
India, Belonia Branch for encashment but on 10.01.2020, the
bank of the appellant returned the said cheque as the cheque
was dishonoured with the endorsement " funds insufficient".
Thereafter, the appellant requested the respondents to pay the
amount. Accordingly, the appellant issued a Demand Notice on
03.02.2020 through registered post requesting the respondents
to make payment within 15 days from the date of receipt of the
Demand notice. On 05.02.2020, the respondent namely, Samir
Debnath received the notice and despite receipt of the Demand
Notice, the respondents failed to pay the amount and
accordingly, the appellant lodged the complaint under Section
138 of the Negotiable Instruments Act, 1881 before the learned
Chief Judicial Magistrate, South Tripura, Belonia.
3. To prove the case of the appellant, the appellant
exhibited the original cheque No.008288 dated 16.10.2019,
original deposit slip dated 04.01.2020 of United Bank of India,
Belonia, Branch, original return memo dated 10.01.2020
forwarded by the IDBI Bank, Bankar Bazar Branch, Belonia,
original return memo dated 10.01.2020 issued by the UBI,
Belonia Branch, Original Advocate Notice dated 03.02.2020,
original receipt of Sub post office dated 04.02.2020 and
acknowledgment card. Further to prove the case of the
appellant, the appellant deposed as P.W.-1. The respondents
being the accused persons pleaded not guilty and claimed to be
tried. The respondents in their plea of defence recorded on
26.02.2021 stated that the cheque in question is completely
false and fabricated and the cheque was issued as a security
deposit in favour of the appellant.
4. Thereafter, the learned Trial Court upon recording
the evidence and in the conclusion of the Trial passed the
Judgment and order dated 19.05.2022 whereby the learned Trial
Court acquitted the respondents from the offence under Section
138 of N.I. Act, 1881.
5. Being aggrieved with the aforesaid Judgment and
Order dated 19.05.2022 passed in Case No.N.I. 04/2020, the
appellant herein approached this Court by way of filing this
present appeal seeking the following reliefs:-
"i. Admit the appeal.
ii. Issue Notice upon the respondents.
iii. Call for the records.
iv. And after hearing the parties be pleased to set aside
the judgment and order dated 19.05.2022 passed by the learned Chief
Judicial Magistrate, South Tripura, Belonia and further convict the
respondents under Section 138 of the Negotiable Instruments Act, 1881
and sentence the respondents accordingly."
6. Heard Mr. A. Bhaumik, learned counsel appearing
for the appellant. Mr. K. Nath, learned counsel appearing for the
respondents pleaded to dispose the leave application bearing
No. Crl.L.P. No.4 of 2022.
7. It is seen from the record that during cross-
examination, the appellant stated that he have issued another
legal notice through his engaged learned counsel Kishore
Majumder dated, 24.06.2019 and in that matter he demanded
Rs.3,14,000/- for the selling of the goods to the accused
persons for the year 2018 and to discharge the liability, the
accused persons on 15.03.2019 issued one cheque bearing
No.008276 dated 15.03.2019. The learned Court below on
perusing the said statement of the appellant concluded that "on
perusal of the same, it reveals that for the selling of the goods
to the accused persons for the year 2018 and to discharge the
liability, accused has already pay Rs.3,14,000/- vide cheque
No.008276 dated 15.04.2019. Hence the placing of cheque
No.008288 dt. 16.10.2019 for the same period if nothing but a
misuse of the cheque which was given by the accused persons
as a security". Learned counsel herein submits that this finding
of the learned Court below is based on no evidence since in the
connected I.A. No.02 of 2022 filed in this present appeal, a copy
of the original certificate dated 25.07.2022 is annexed as
annexure-1 is filed as additional evidence vide I.A. No.02 of
2022, wherein it is stated that " As per our records a cheque
was presented on 15/03/2019 by IDBI bank with the instrument
No.008276 amounting to Rs.3,14,000/- which was rejected due
to reason „Funds Insufficient‟ by the drawee bank and was
returned to the cheque presenter Mr. Rajib Saha on
10/06/2019". So the learned Trial came to the findings as
mentioned here-in-above without any evidence or basis and
more so the documents in additional evidence needs to be
appreciated. As such, this present matter needs to be remanded
back to the Court below for taking fresh evidence and
adjudication of the matter on the same.
8. This Court finds that the Court below without any
basis or evidence straightway came to the finding as mentioned
in the impugned Judgment and Order dated 19.05.2022. As
such, this matter is remanded back to the Court below for
appreciation of evidence and to pass a reasoned order as per
law.
9. As a sequel the I.A. No.02 of 2022 and leave petition
vide Crl.L.P. No.4 of 2022 are closed in the light of the present
appeal.
10. With the above observation and direction, this
present appeal stands disposed of. As a sequel stay if any
stands vacated.
JUDGE
suhanjit
