For vs Unknown
2023 Latest Caselaw 437 Tri

                          HIGH COURT OF TRIPURA
                                AGARTALA

                               Crl.A. 14 of 2022

For Appellant(s)               : Mr. D. Sarkar, Adv.
                                 Mr. M. Saha, Adv.
For Respondent(s)              : Mr. S. Debnath, Addl. PP
                                 Mr. Samarjit Bhattacharjee, Adv.

                   HON'BLE MR. JUSTICE T. AMARNATH GOUD

                                    ORDER

22.05.2023

This is an appeal against acquittal under Section 378(4) of Cr.P.C

challenging the legality, validity and propriety of the judgment and order of

acquittal dated 12.05.2022 in connection with Case No.NI 10 of 2021 passed by

Chief Judicial Magistrate, South Tripura, Belonia whereby the accused Sri Minal

Sen was acquitted for the offence punishable under Section 138 of the NI Act,

1881.

[2] It is the case of the complainant-appellant that the he is known to

the accused person (the respondent No.2 herein) as both of them resided in the

same locality i.e, Bash para colony, Belonia and they have a good friendly

relation. Out of good friendly relation, the complainant along with the accused

and his wife made an agreement applied for obtaining a foreign liquor licence in

the name of accused's wife namely Pampi Sen Malakar for this an amount of

Rs.8,20,000/- should be deposited before the licencing authority. Out of said

amount 50% share amount i.e, Rs.4,10,000/- will be borne by the complainant

as a partner as per written agreement between them. Thereafter, the

complainant that after obtaining licence of foreign liquor in the name of the

accused's wife, the accused will run the business with the complainant as a

partner and the accused will bear all the expenditures and also obey all the

conditions which were written on a non-judicial stamp paper of Rs.5/- in

presence of witnesses. Thereafter, the complainant that on the stamp paper it is

mentioned that the complainant has given to the accused Rs.6,00,000/- in total

for purchasing goods of foreign liquor shop and also for obtaining licence as

tender amount. The accused also borrowed money from the complainant on

previous occasions but after obtaining the licence accused did not run the

business with the complainant as a partner. Thereafter, the complainant

demanded his indebted amount and after few days the accused liquidated the

amount of Rs.1,90,000/- out of Rs.6,00,000/- and regarding the remaining

amount i.e, Rs.4,10,000/-, the accused issued a cheque bearing no.854812

dt.19.02.2021, UCO Bank, Belonia branch in the name of the complainant. On

the same day, the complainant deposited the said cheque for encashment in his

bank i.e, UCO Bank, Belonia Branch but on 22.02.2021 banker of the

complainant returned the said cheque dishonoured mentioning with remarks,

"Insufficient Balance". In due course the complainant had requested the accused

to pay indebted cheque amount but the accused did not pay the said amount and

also did not pay any heed after which, a legal demand notice dated 02.03.2021,

was sent to the accused through ' PROFESSIONAL' Courier Service and also

requested the accused person to make payment within 15 days from the date of

receipt of said notice. It is evident that on 04.03.2021, accused person received

the said demand notice and inspite of receiving notice the accused did not take

any step to liquidate his liability then the complainant was constrained to file the

present case.

[3] It is evident from the record that the appellant herein before

approaching this court moved to the court of the Chief Judicial Magistrate, South

Tripura, Belonia where the court below after examining the case has observed in

the following manner:

"As such, I hold that accused has remained successful in rebutting the mandatory presumption of law drawn in favour of the complainant.

I, accordingly return a finding of not guilt against the accused Sri Mrinal Sen.

The accused Sri Mrinal Sen is hereby acquitted for the offence as punishable under Section 138 N.I.Act, 1881."

[4] Aggrieved thereby, the complainant-appellant has approached this

court for admitting his appeal and thereafter issue notice upon the respondents.

The appellant has also prayed this court for setting aside and quashing the

judgment and order of acquittal dated 12.05.2022 in connection with the case

No. NI 10 of 2021 by CJM, South Tripura, Belonia, whereby the accused Sri

Mrinal Sen was acquitted for the offence punishable under Section 138 of NI Act,

1881.

[5] Heard learned counsel appearing for the respective sides.

[6] After perusing the entire records, this court is of the view that this

court is not in a position to appreciate the finding reached by the court below.

The court below seems to have overlooked the ingredients of Section 138 of NI

Act, 1881. It appears that the court below ought to have appreciated negotiable

instrument, signature, demand notice sent by the complainant-appellant to the

accused-respondent No.2 and failure to reply to the notice and also appreciation

of evidence. The same could have been accepted by the concerned court below

since there is no valid denial by the respondent by way of any reply. However,

without appreciating the said transaction under Section 138 of the NI Act, 1881

the court below has dealt with the issue on the point of agreement and contract.

Ambit of Section 138 of the NI Act, 1881 is more relevant than going into the

disputed question of facts relating to contract. One crucial thing which is

established is the transaction between complainant & respondents.

[7] In view of the above discussion, this court is remanding back the

present case to the concerned court below to deal with the matter in its entirety

and also in the light of the judgment passed by the Supreme Court in Rangappa

vs S. Mohan reported in (2010) 11 SCC 441 and also in the light of the other

judgments of the apex court.

[8] With the above observation and direction, this present criminal

appeal stands disposed of and judgment in case No. NI 10 of 2021 on the file of

CJM, South Tripura, Belonia, dated 12.05.2022 stands set aside. As a sequel,

stay if any stands vacated. Pending application(s), if any also stands closed.

JUDGE

Dipak