Tripura High Court
Sri Sankar Ghosh vs Smt. Rikta Pal(Sarkar) on 21 August, 2024
Author: T. Amarnath Goud
Bench: T. Amarnath Goud
Page 1 of 12
HIGH COURT OF TRIPURA
AGARTALA
CRL.REV. P. NO.52 OF 2023
Sri Sankar Ghosh,
Son of Late Parimal Ghosh,
Aged about 56 years, a resident of
Ramnagar Road No.11, P.O.-Ramnagar,
P.S. West Agartala, Sub-Division-Agartala,
District-West Tripura.
......Petitioner(s)
Versus
1. Smt. Rikta Pal(Sarkar),
Wife of late Sankar Prasad Sarkar,
A resident of Jail road, P.O.- Belonia,
P.S.- Belonia , Sub-Division, Belonia,
District- South Tripura.
2. The State of Tripura.
.......Respondent(s)
For the Petitioner(s) : Mr. S. Majumder, Advocate.
For the Respondent(s) : Mr. D. Bhattacharjee, G.A.
Mr. R. Datta, P.P.
Mr. S. Das, Advocate.
Date of hearing : 16.08.2024
Date of delivery of
Judgment & Order : 21.08.2024.
Whether fit for reporting : YES.
HON'BLE MR. JUSTICE T. AMARNATH GOUD
JUDGMENT & ORDER
This present criminal revision petition has been filed
under Section 397 read with Section 401 of the Criminal Procedure
Code, 1973 against the impugned Judgment & Order dated
23.08.2023, passed by the learned I/c Sessions Judge, South
Tripura, Belonia, in Criminal Appeal No. 25 of 2019, affirming the
Judgment of conviction of the petitioner dated 27.08.2019 passed
by the learned Chief Judicial Magistrate, South Tripura, Belonia, in
case no. N.I. 4 of 2017, for committing offence punishable under
Section 138 of the Negotiable Instruments Act, 1881, and modifying
the sentence of the appellant from suffering simple imprisonment
for 1 (one) year and to pay a fine of Rs. 4,20,000/-, and in default
of making the payment of the fine to suffer simple imprisonment for
six months.
2. The brief fact of this case is that the petitioner who is a
contractor by profession had a good relationship with Sankar
Prashad Sarkar (now deceased) a fellow contractor and for the
purpose of his business, he obtained a loan of Rs. 2,10,000/- on
12.05.2015. After some days the petitioner in discharge of said loan
liability issued a post-dated cheque bearing No.927029 drawn at
SBI, Kunjaban Branch, Agartala in favour of Sankar Prashad Sarkar.
Upon the death of deceased-Sankar Prashad Sarkar, on
presentation of the cheque to SBI, Belonia Branch on 02.09.2016 by
respondent No. 1, being the widow of Sankar Prashad Sarkar, it was
dishonored on 28.11.2016 on the ground of insufficiency of the fund
in the account of the petitioner. After such dishonor, the petitioner
though assured to make payment of the cheque amount, but, did
not do so. Following such failure, respondent No.1 on 14.12.2016
served statutory notice upon the petitioner through her lawyer.
Despite receipt of said notice the petitioner did not comply with the
demand as required in the notice. Such non-compliance with the
demand was followed by a complaint under Section 138 of the NI
Act filed by the complainant respondent before the learned Trial
court.
3. On such complaint, cognizance of offence under section
138 of the N.I. Act was taken by the learned Trial court against the
petitioner. The learned Chief Judicial Magistrate, South Tripura,
Belonia, after taking cognizance proceeded for disposal. To prove
the case, from the prosecution side, one witness was examined i.e.
respondent no. 1 herself, and also proved some documents. On the
other hand, the petitioner also adduced himself as defence witness.
Learned Chief Judicial Magistrate, South Tripura, Belonia, after
hearing both sides vide judgment dated 27.08.2019 convicted the
petitioner for committing offence punishable under Section 138 of
the Negotiable Instruments Act.
4. Being aggrieved and dissatisfied with the judgment dated
27.08.2019 passed by the learned Chief Judicial Magistrate, South
Tripura, Belonia in N.I. 4 of 2017, the petitioner preferred an appeal
before the learned Sessions Judge, South Tripura, Belonia, and the
same was registered and marked as Criminal Appeal 25 of 2019.
After hearing the parties, learned I/c Sessions Judge, South Tripura,
Belonia vide impugned judgment dated 23.08.2023 partly allowed
the appeal. Vide impugned judgment dated 23.08.2023, learned I/c
Sessions Judge, South Tripura, Belonia, upheld the conviction of the
petitioner for committing offence punishable under Section 138 of
the Negotiable Instruments Act, but modified the sentence as stated
herein above.
5. Being aggrieved and dissatisfied with the impugned
Judgment dated 23.08.2023, passed by the I/c Sessions Judge,
South Tripura, Belonia, in Criminal Appeal 25 of 2019, the petitioner
has preferred the instant criminal revision petition.
6. Heard Mr. S. Majumder, learned counsel appearing for
the petitioner as well as Mr. D. Bhattacharjee, learned Sr. counsel
assisted by Mr. S. Das, learned counsel appearing for the
complainant respondent, and Mr. R. Datta, learned P.P., appearing
for the State-respondent.
7. Mr. S. Majumder, learned counsel appearing for the
petitioner submits that the learned Courts below failed to appreciate
that the prosecution has failed to bring home the charges against
the petitioner. Learned counsel submits that the cheque was
purportedly issued by the petitioner in favour of the husband of
respondent No.1. On the death of her husband, the complainant-
wife deposited the said cheque in her bank account and the cheque
was returned. The respondent No.1 has no right to deposit the
cheque in her bank account. For the dishonor of the said cheque,
the petitioner cannot be convicted under Section 138 of the
Negotiable Instrument Act. In the statement of respondent No.1
there is a huge gap regarding the specifics of the said transacted
amount. The learned Courts below failed to consider the cross-
examination of P.W.-1 wherein she stated that she does not know
how her husband arranged the cash amount of Rs.2,10,000/-. Nor
did she submit any document relating to the income tax assessment
or payment made by her husband nor did she submit any document
relating to the death of her husband. Stating thus, learned counsel
urged this Court to allow this revision petition.
8. On the other hand, Mr. D. Bhattacharjee, learned Sr.
counsel assisted by Mr. S. Das, learned counsel appearing for
respondent No.1 argued that the wife-respondent enters into the
shoe of the husband as a legal representative and she is entitled to
present the cheque and file the case thereafter.
To support his case learned Sr. counsel relied upon
Judgment of the Hon'ble Supreme Court passed in Criminal
Appeal No.485 of 2002 titled as Shankar Lal Vs. Sanyogita
Devi(Dead) Through Lrs.
9. Learned Sr. counsel appearing for respondent No.1 to
support his argument further relied upon the relevant portion of
para-3 of the Judgment of this Hon'ble Court passed in Crl. Rev. P.
No.44/2017 dated 21.11.2017, which is given here-in-under:-
"3. Both Mr. D. Bhattacharjee, the learned counsel for
the petitioner, and Mr. P. Sahu, the learned counsel for the
respondent, were heard at some length. The question as to
whether the legal heir of a payee can file a complaint under Section
138 of the Act is no longer res integra. This Court in Smt. Rikta Pal
Sarkar v. Milan Pal (Crl. Rev. P. No. 33 of 2017) vide the judgment
dated 9-8-2017 following the decision of the Apex Court in AC
Narayanan v. State of Maharashtra & another, (2014) 11 SCC 790,
held that the legal heir of the deceased is the "holder in due
course" of the cheque and could, therefore, maintain a complaint
under Section 138 of the Act. The only rider is that the legal heir
should have knowledge about the transaction in question so as to
enable him/her to bring on record the truth of his/her grievance.
Two more decisions of various High Courts can also be cited in this
connection, namely, Ajay Kumar Agarwal and another v. State of
Jharkhand and another, 2003 Cri LJ 3088 and Chandra Babu v.
Remani, 2003 (2) KLT 750(DB). The learned Chief Judicial
Magistrate has overlooked the decision of this Court and has in the
process improperly exercised his jurisdiction in dismissing the
complaint. The observations of the Division Bench of the Kerala
High Court in Chandra Babu (supra), with which I am in respectful
agreement, succinctly explained the legal position:
"8. There is no dispute that the proposition that legal
representative can file a suit for realising the amount. A Full Bench
of the Punjab and Haryana High Court after considering large
number of decisions in Padam Parshad v. Lok Nath Ishwar Sarup
and Ors., (AIR 1964 P&H 497 FB) held as follows:
"(5)....... It will be apparent from the definition of
holder' that it means a person entitled in his own name to the
possession of the negotiable instrument and to receive or recover
the amount due thereon from the parties thereto. Section 78
provides as to whom payment should be made of the amount due
on the promissory note in order that the maker or acceptor thereof
is discharged from liability thereon. On the interpretation of the
aforesaid two sections, a plethora of case law has grown up, but it
appears to us that so far as the case of an heir of a deceased holder
is concerned, the rule of law seems to be well settled. The
preponderance of judicial opinion is for the view that an heir of a
deceased holder can bring a suit on the basis of the promissory
note though such an heir cannot be said to be a holder within the
meaning of Section 8. The decided cases, which will be noticed
hereafter, are almost unanimous that there is no bar created by the
aforesaid two sections in the way of such an heir to sue on the
basis of the promissory note and recover the debt due to the
deceased holder".........................................
10. Next contention is that there may be other legal heirs and,
therefore, complaint by the one legal heir/representative is not
maintainable. That is a matter for evidence. Further, they are all
curable defects and that is not a matter to be considered for
quashing a complaint at the initial stage. (See: M.M.T.C. Ltd. and
Anr. v. Medchil Chemicals & Pharma (P) Ltd. and Anr.,
MANU/SC/0728/2001 : 2002 (1) SCC 234 = 2001 AIR SCW 4793)."
10. Heard and perused the evidence on record.
11. To properly adjudicate the matter let us examine some
important documents and evidence.
12. Let us produce the Advocate notice dated 14.12.2016
made by the lawyer of the complainant respondent to the petitioner
herein:-
" NOTICE UNDER SECTION 138 OF NEGOTIABLE ACT
Sir,
I am duly instructed by my client Smt. Rikta Pal (Sarkar) to
draw your attention about the bouncing of post paid cheque issued by
you in favour of my client's husband Late Sankar Prasad Sarkar.
That my client Smt. Rikta Pal (Sarkar) became the holder of the post paid
cheque issued by you on the death of her husband on 10.04.2016.
The date of encashment of this cheque was on 02.09.2016.
So, my client waited up to date, and therefore submitted the
cheque before the SBI, Belonia Branch, SBI Belonia Branch transmitted
the post paid cheque to the Kunjaban Branch of SBI for encashment as
your account is lying there.
But on 28.11.2016 my client received a registered letter
from the Kunjaban Branch of SBI. It is inform that the cheque could not
be encashed as you had insufficient fund in your account.
Hence the said cheque is bounced.
You promised to pay the amount as you had taken from the
husband of my client.
It is a breach of promise to you.
I am therefore, requesting you to pay the cheque amount of
Rs. 2,10,000/- to my client within 15 days from the date of receipt of this
demand notice. Failing which both Criminal and Civil case as well as u/s
138 of NI Act, case will be instituted against you for fraudulent and
cheating as aforesaid amount of Rs.2, 10,000/- with an exemplary cost
with interest.
Your co-operation is highly solicited.
Thanking you.
Yours Faithfully
Sd/-
(Goutam Pal)
Advocate Belonia"
13. In the deposition of the complainant respondent, she
stated that in her presence, the petitioner requested her husband to
help him by making a payment of Rs.2,10,000/-. Her husband
agreed to the said request and the petitioner agreed to give him a
post-dated cheque as a guarantee. Her husband died on
10.04.2016 and on 02.09.2016, she being the successor of the
property of her husband deposited the cheque to SBI Belonia
Branch for collection of amount of Rs.2,10,000/- but the cheque
was dishonored. She then sent a notice on 14.12.2016 for payment.
She also stated that after the death of her husband, she
represented all other legal heirs of her husband.
It is not mentioned in her cross-examination or in the
complaint, as to how her husband arranged for the cash amount of
Rs.2,10,000/- She did not submit any document relating to income
tax assessment or payment made by her husband. She did not
submit any document relating to the death of her husband. She did
not submit any document relating to any authorization from her
children to proceed with this case on their behalf.
14. In the fact of the case, it is pertinent to mention
the definitions of "drawer", "drawee" "cheque" and "holder" in
terms of the Negotiable instrument Act which are as under:-
"Drawer", "Drawee".- The maker of a bill of exchange or
cheque is called the "drawer"; the person thereby directed to pay is
called the "drawee".
Cheque.--A " Cheque" is a bill of exchange drawn on a
specified banker and not expressed to be payable otherwise than on
demand and it includes the electronic image of a truncated cheque
and a cheque in the electronic form.
"Holder".- The "holder" of a promissory note, bill of
exchange or cheque means any person entitled in his own name to
the possession thereof and to receive or recover the amount due
thereon from the parties thereto.
Where the note, bill and cheque is lost or destroyed, its
holder is the person so entitled at the time of such loss or
destruction."
15. It is seen from the legal notice dated 14.12.2016 that
there is no whisper about any transaction between the decased
husband and the accused-person herein. The complainant-wife has
no knowledge about the said transaction.
16. In the complaint, there is no specific statement that on
which date the deceased husband of the complainant respondent
had paid the amount to the accused person herein.
17. In the examination-in-chief of the complainant-
respondent, there is no specific statement on which date, her
deceased husband has paid the amount to the accused person i.e.
the petitioner herein.
18. It is also seen that the cheque in question is a post-dated
cheque bearing No.927029. According to the complainant, on
12.05.2015, the accused person, i.e. the petitioner herein
requested her husband to help him by making payment of
Rs.2,10,000/-. Her husband then agreed to pay the accused person.
A few days later, the petitioner herein agreed to give her husband a
post-dated cheque as a guarantee. The petitioner herein promised
to refund the amount within one year and in case of nonpayment,
he asked her husband to deposit the cheque on 02.09.2016. In the
meantime, her husband died on 10.04.2016 and she presented the
cheque on 02.09.2016. There is a huge gap in between and there is
no explanation from the claimant either in the legal notice,
complaint or examination-in-chief. The prima facie document that
falls for consideration is the legal notice which does not contain any
of the said ingredients and the fact and also the knowledge of the
complainant about the said transaction.
19. It is seen that the husband of the complainant died on
10.04.2016 and the cheque was presented on 02.09.2016. It is
reasonably presumed that once a person dies, automatically, the
Bank account is either frozen or closed and no transaction takes
place. It is not made clear and nothing is placed on record to say
that the complainant was the holder of the account and has been
transacting as per the bank norms.
20. This case is purely technical under the N.I. Act,
which involves penal action, and unless the facts and allegations are
established against the accused person beyond reasonable doubt,
the accused person cannot be punished. The issue under the N.I.
Act is purely technical in nature and there is no whisper or
averment to say that the complainant has the knowledge and she is
the authorized or competent legal representative and there are no
other legal heirs to claim this particular cheque. The same is also
not indicated in the legal notice which falls as a preliminary
requirement under Section 138 proceeding.
21. The Judgments cited by the learned Sr. counsel
appearing for the complainant respondent are not applicable to the
facts of the case. Hence, the orders passed by the Courts below on
27.08.2019 and 23.08.2023 are set aside and this present revision
petition is allowed and accordingly disposed of with the above
observation.
22. As a sequel, stay if any stands vacated. Pending
application(s), if any also stands closed.
Send down the LCRs.
JUDGE
suhanjit
RAJKUMAR Digitally signed by
RAJKUMAR SUHANJIT
SUHANJIT SINGHA
Date: 2024.08.23 13:22:49
SINGHA +05'30'
