Tripura High Court
Shri Shailen Debnath vs Sri Jogesh Debnath on 12 January, 2024
IN THE HIGH COURT OF TRIPURA
AGARTALA
CRL. L. P. No.08 of 2023
in CRL.A. No.12 of 2023
Shri Shailen Debnath,
son of late Ranjit Debnath,
of Subash Nagar, P.S. Belonia
South Tripura District
......... Petitioner
-Versus-
1. Sri Jogesh Debnath,
son of Sri Dulal Debnath
of Kadamtala, P.S. Belonia,
South Tripura District
2. The State of Tripura.
to be represented by its Secretary,
Home Department, New Capital
Complex,
PS. NCC, Agartala, West Tripura
........ Respondents
For the Petitioner (s) : Mr. D. Datta, Adv.
For the Respondent (s) : Mr. S. Ghosh, Addl. PP
Mr. D.C. Roy, Adv.
Date of hearing : 05.01.2024
Date of delivery of : 12.01.2024
Judgment & order
Whether fit for reporting : No.
HON'BLE MR. JUSTICE S. DATTA PURKAYASTHA
JUDGMENT & ORDER
Challenging the judgment dated 11.04.2023 passed by
the Judicial Magistrate, 1st Class, South Tripura, Belonia in case No.NI
20 of 2018 under Section 138 of the NI Act., the present appeal has
been filed against the order of acquittal of the respondent No.1 in the
said case. For acceptance of the appeal, the leave petition under
Section 378(4) of the Cr.P.C. is filed in the instant case.
[2] The allegations of the complainant-appellant in the said
criminal proceeding as canvassed was that out of congenial
relationship the respondent No.1 borrowed Rs.4,00,000/- from the
appellant and to discharge such liability he issued a cheque of said
amount of Rs.4,00,000/- on 11.07.2018. After the cheque was
despoited by the appellant in the on 13.07.2018 in his bank account
standing at Bandhan Bank Limited, BC Nagar Branch, it was informed
by his bank on 14.08.2018 that the cheque was bounced for
insufficiency of fund. On 18.08.2018 he sent a statutory notice to the
respondent No.1 asking payment of bounced amount which went
futile despite receipt of notice by the respondent No.1 on 18.08.2011
and finally, the complaint was filed in the trial court by him. During
the trial, the respondent No.1 took the defence that he had lost one
signed cheque which was mis-utilised by the complainant and
he also did not receive any statutory notice.
[3] The trial court while acquitting the accused observed
that no documentary evidence was produced by the appellant to
prove the transaction of Rs.4,00,000/- in favour of the
respondent No.1 by him and also did not submit any document
to show that he had sufficient source of income to lend such
huge amount and therefore, it was not clear to the trial court
whether the cheque was issued in discharge of any legal debt or
liability. It was further observed by the trial court that no copy
of the notice was found in the record and therefore, serving of
statutory notice upon the respondent No.1 by the appellant was
also not proved.
[4] Mr. D. Datta, learned counsel appearing for the
appellant-petitioner argued that during trial the complainant
was examined and many documents were also proved into
evidence by him but on that day the defence counsel was not
present and accordingly, chapter of recording of evidence was
closed. But after so many days when the case was fixed for
argument, the learned counsel for the appellant without any
instruction from the appellant, submitted a petition in the court
under Section 311 of the Cr.P.C. for re-examination of the
appellant and when he appeared for such re-examination, his
said counsel did not adduce any further evidence rather gave a
space to the defence counsel to cross-examine the complainant
at length, by exercising malpractice for helping the respondent
No.1 in this way, causing miscarriage of justice. Therefore,
according to Mr. Datta, for due administration of justice, leave
may be granted by accepting the appeal.
[5] Mr. D.C. Roy, learned counsel appearing for the
respondent No.1 argued that despite ample scope given to the
appellant he did not submit the copy of the advocate notice in
the trial court and therefore, the trial court committed no error
in acquitting the respondent No.1.
[6] Mr. Samrat Ghosh, learned Addl. PP appearing for
the state-respondent No.2 also submitted that no error or
impropriety could be detected in the impugned judgment and
therefore, leave may not be granted.
[7] Vide order dated 29.09.2023 this Court directed the
appellant to submit one affidavit containing certified copies of
the exhibited documents placed before the trial court to satisfy
that all five ingredients as stipulated in Section 138 of NI Act
was satisfied. Despite sufficient scope given, the appellant did
not submit such affidavit rather on 05.01.2024 photocopies of
certified copies of some exhibited documents and photocopy of
one uncertified copy of one purported advocate notice dated
18.08.2018 were submitted. From the available record, it is
found that during trial the copy of the statutory notice was not
proved into the evidence. The photocopy of the said advocate
notice purportedly issued on 18.08.2018 (not exhibited) as
submitted in the court, surprisingly demonstrates that the notice
giver Advocate has signed the notice on 18.08.2022. Therefore,
said document is not reliable.
[8] As indicated above, despite specific order no affidavit
is also submitted by the complainant. Therefore, even if the
observation of the trial court that it was doubtful that the
cheque was issued in discharge of any legal debt or liability, is
ignored or is decided in favour of the appellant, still the factum
of service of statutory notice upon the respondent No.1 remains
not proved. The allegation of the appellant that illegally scope
was made available to the defence counsel to cross-examine
him under the pretext of re-examination cannot cure such odd
in the prosecution case and same has no nexus with it.
[9] For the reasons as discussed above, the leave as
sought for is not granted. Accordingly, this instant petition
stands rejected and consequently, the connected Criminal
Appeal No.12 of 2023 is also disposed of being not admitted.
Pending application, if any, also stands disposed of.
JUDGE
SATABDI DUTTA DUTTA
Date: 2024.01.12 18:46:27 +05'30'
Sujay
