Madhusudan Chakraorty Vs Laxmi Priya Samanta & Anr

Subhasis Dasgupta, J

The impugned judgment and order dated 28.08.2018 passed by the learned Additional District & Sessions Judge, 1st Fast Track Court, Bichar Bhavan, Calcutta dismissing the Criminal Revision No.06 of 2018 and thereby affirming the judgment and order dated 08.11.2017 passed by the learned Metropolitan Magistrate, 17th Court at Calcutta in connection with C-1122/2005 convicting the revisionist/petitioner for commission of offence punishable under Section 138 of the Negotiable Instruments Act and sentenced him to pay compensation of Rs. 5 lakh to complainant/opposite party within two months, in default to suffer simple imprisonment for two months is the subject of challenge in this revisional application under Section 482 of the Code of Criminal Procedure.

Learned advocate for the petitioner/convicted accused submitted that compensation in the given set of facts, as awarded by the court below, should be deemed to be a fine for the purpose of Section 64 of the Indian Penal Code, and conjoint reading of Sections 357/372/374/376 Cr. P.C and Section 64 IPC would show that a sentence of fine imposed by the High Court, Court of Sessions, or Metropolitan Magistrate or any Magistrate of the First Class would be appealable under Section 374 Cr. P.C provided such fine exceeded a sum of Rs. 1000/-, Rs.200/- and Rs.100/- respectively, as provided in Section 376 thereof. It was contended that compensation per se was not appealable at the behest of the convict under the aforesaid provision, unless it formed a part of the fine under Section 357 (1) Cr. P.C. and is appealable as such. Argument was raised further for the petitioner submitting that in view of the decision reported in 2017(2) Cal Criminal Law Reporter178 : 2017 Criminal Law Journal 3764 delivered by a Coordinate Bench of this Court in the case of P.S. Mitra alias Partha Sarathi Mitra vs. Manor Travels Private limited & Anr., the remedy of appeal available against such sentence of fine having already been extended, the petitioner should be favoured with that option of preferring appeal against such sentence of fine which he mistakenly filed the revisional application against the order of conviction passed by the learned court below.

It was contended by the learned advocate for the petitioner that jurisdictional error could be challenged at any point of time, and the order passed in revision having suffered from want of jurisdictional error would be nullity and void ab initio.

Learned advocate for the opposite party No.2 controverting the submissions raised by the petitioner most ardently submitted that the Court should not consider the nomenclature of the action already undertaken to challenge the order of conviction. Thus according to the private opposite party/complainant, when the convicted accused preferred to file an application before the superior court in connection with criminal revision No. 145 of 2016 in order to challenge the order of conviction and thereby the sentence passed thereunder directing him to deposit Rs. 5 lakh as compensation under Section 357 Cr. P.C within two months from the date of the order in default to suffer simple imprisonment for two months and when the same stood affirmed by the Revisional Court, there left nothing to be interfered with by this Court.

Learned advocate for the State proposed for disposal of this Court in view of settled proposition of law.

Some salient facts may be referred here for addressing the issue requiring decision in this case. The petitioner/convicted accused in order to discharge his existing debt or liability issued a cheque of Rs. 3 lakh, dated 5th October, 2005 in the name of the husband of private complinant/opposite party, which was dishonored by the bank for insufficiency of fund. A prosecution under Section 138 of NI Act was then launched after serving a notice of demand. The husband of the private opposite party no.1 suffered death during the pendency of this case, and by way of a substitution application, the opposite party No.1 stepped in to the shoes of her husband, erstwhile complainant. Learned Metropolitan Magistrate 17th Court after conducting a trial held the petitioner convicted and accordingly sentenced him to pay of Rs. 5 lakh as compensation to the complainant within two months, in default to suffer simple imprisonment for a term of two months. The order of conviction with a sentence to pay Rs. 5 lakh as compensation was carried in revision in connection with criminal revision No.6 of 2018, which was disposed of by learned Additional District & Sessions Judge, 1st Fast Track Court, Bichar Bhavan, Calcutta dismissing the revisional application, and thereby affirming the order of the learned Magistrate.

Upon perusal of the order impugned, it is apparent that in the first page and in the operative portion, found in the fifth page of the order, passed in criminal revision No.6 of 2018, the action challenged by the convicted accused against the order of sentence passed by the court below was described as criminal revision, while in other portion of the order found at different pages of the order involved therein, the same action undertaken by the petitioner was described to be an appeal. The nomenclature of the action undertaken by the petitioner is thus mentioned differently at different pages of judgment, passed in criminal revision No.6 of 2018.

The revisional court disposed of the revision finding there no illegality in the order of conviction upon consideration of the matters, as already referred to by the parties during hearing of the revisional application. The presumption available under Section 139of N.I. Act favourable to the purpose of the complainant, according to revisional court, was rightly drawn by the learned magistrate for want of contrary evidence being found to exist at the instance of the convicted accused. Nine (9) documents were marked as "Exhibits" without objection. There left no dispute regarding issuance of the cheque and the signature found on the cheque. The ingredients of the offence complained of, having been established in the given set of facts, the lower revisional court thus affirmed the order of the learned Magistrate as against the order of conviction, and the sentence recorded thereunder.

Though the statutory action undertaken by the petitioner was shown to have been registered as a Revisional Application, but in the body of the judgment, it was specifically mentioned that the petitioner having felt aggrieved with the judgment and order, passed by the learned court below, the petitioner preferred criminal appeal against the order of conviction. The significant aspect that has to be kept in mind that a cheque involving an amount of Rs. 3 lakh was dishonoured for insufficiency of fund sometimes in 2005, and even after expiry of more than 11 years, the order of conviction was recorded by the court below. The same could not be given effect to, even after it was upheld by Revisional Court causing a great sufferings to complaint.

The judgment sought to be relied upon as already referred by the petitioner delivered in the case of P.S. Mitra alias Partha Sarathi Mitra (supra) came to be decided on 21.03.2017, while the revisional application being No.6 of 2018, filed on 6th January, 2018, was disposed of on 28th August, 2018. Thus both the filing of the revisional application and its disposal thereof were completed long after the decision was rendered in the case of P.S. Mitra alias Partha Sarathi Mitra (supra). The petitioner did not throw any challenge in the revisional application with a prayer for conversion of the revision into an appeal, keeping in view the decision rendered in the case of P.S. Mitra alias Partha Sarathi Mitra (supra) .

The grounds taken in the instant revisional application under Section 482 are very important to reveal that the petitioner felt aggrieved with non-application of the provisions contained in Section 143 of the NI Act, and also for the alleged contravention of the provisions contained in Section 326(3) of the Code of Criminal Procedure. Section 143 of the Act speaks for power of the court to try cases summarily, while Section 326(3) Cr. P.C. speaks for non-application of such general provisions contained in Section 326 Cr.P.C. to cases tried under summary procedure. In the instant revisional application, filed on 18th September, 2018 nothing was raised as grounds taken alleging that appellate remedy would be there instead of revision in the given context of this case against the order of conviction sentencing the convicted accused to pay compensation of Rs. 5 lakh within two months from the date of order in default to undergo simple imprisonment for two(02) months.

Even after disposal of the revisional application affirming the order of the learned Magistrate, the petitioner convicted accused preferred to file this revisional application proposing once again to avail of the appellate remedy, recognised in the case of P.S. Mitra alias Partha Sarathi Mitra (supra) as already referred by the petitioner. Besides the decision referred above, the petitioner had taken shelter of a decision reported in (1986) 4 SCC 537 delivered in the case of Institute of Chartered Accountants of India vs. L.K. Ratna & Ors. whereby and whereunder the Disciplinary Committee after holding a Chartered Accountant to be guilty of misconduct submitted its report to council, known for looking after the management of the Institute of Chartered Accountants of India, and the Disciplinary Committee before recording penalty against a Chartered Accountant for his alleged misconduct, proceeded to extend an opportunity of hearing before recording any finding to that effect, although the member Chartered Accountant had already participated in the inquiry on the ground that the erring Chartered Account had no opportunity to demonstrate the fallibility of the conclusion of the Disciplinary Committee, and thus the Disciplinary Committee by extending an opportunity of hearing to the erring Chartered Accountant thought it prudent to correct the error in the procedure adopted by the Disciplinary Committee, which could be resulted in vitiating the inquiry. Thus learned advocate for petitioner submitted that an opportunity of hearing was given to an erring Chartered Account for his alleged misconduct simply to repair the error in the procedure, if there be any, already adopted by the Disciplinary Committee, irrespective of the fact whether the erring official had taken part in the inquiry proceeding, conducted before the Disciplinary Committee. In order to establish proposition of law, it was contended also that there cannot be any principle of estoppel against the statutory rights and liabilities of the parties involved in a case.

Reliance was placed by the petitioner on several decisions reported in (2008) 12 SCC 675 delivered in the case of State of Uttar Pradesh & Anr India vs. Uttar Pradesh Rajya Khanij Vikas Nigal Sangharsh Samiti & Ors. and reported in (1998) 6 SCC 507 reported in P.R. Despande India vs. Maruti Balaram Haibati, while describing the proposition of law that the doctrine of election being based on the rule of estoppel cannot impede the right of appeal, and particularly the constitutional remedy. Learned advocate in application of such provisions, as propounded in the cases referred above, submitted that the petitioner could not be precluded by his action or conduct or silence when it was his duty to speak for ascertaining a right, which he otherwise would have had.

In order to derive benefit, reference was made by petitioner to two decisions reported in AIR 2013 SC 3060 delivered in Dr. Jagmittar Sain Bhagat India vs. Dir, Helath Services, Haryana & Ors. and (2011) 10 SCC 543 delivered in Union of India & Anr. India vs. Association of Unified Telecom Service Providers of India for making submission with all emphasis that the conferment of jurisdiction was a legislative function, and it could neither be conferred with the consent of the parties, nor by superior court, and if the court passes a decree having no jurisdiction of the matter, it would amount to nullity, as the matter goes to the root of the cause. Thus according to the petitioner, the jurisdictional issue can be raised at any stage of the proceeding even without taking any necessary grounds therefor in the present case under consideration. The revisional court according to petitioner not being appropriate forum, as recognised in the case of P.S. Mitra alias Partha Sarathi Mitra (supra), the order recorded thereunder would suffer from want of jurisdiction.

In the case of P.S. Mitra alias Partha Sarathi Mitra (supra) as sought to be applied over the facts and circumstances of the case by the petitioner, the accused petitioner was convicted for commission of offence under Section 138 of the NI Act and sentenced to suffer imprisonment till the rising of the court, and further directed to pay compensation to the tune of Rs.4 lakh within one month, in default to suffer simple imprison for two years. The convicted accused initially preferred a revisional application and subsequently made a prayer for converting such revision into appeal, and such prayer was turned down. In context with factual matrix involved in P.S. Mitra alias Partha Sarathi Mitra (supra) , the court after application of purposive and interpretative exercise extended the appellate remedy against imposition sentence of compensation treating the same as fine for the purpose of Section 64 IPC, and allowed conversion from revision into appeal with a direction to dispose of the same in accordance with law at an early date. In the case at hand, the revisional application had already been disposed of giving a finality to the order of conviction and the sentence thereunder with a direction to pay Rs. 5 lakh as compensation within two months from the date of the order, in default to suffer simple imprisonment for two months.

The settled proposition of law is that the law declared by the court will have a retrospective effect, if not, declared otherwise so specifically. The purposive interpretation so employed in the case of P.S. Mitra alias Partha Sarathi Mitra (supra) rendered the decision therein to be effective from the date of enactment of the provisions.

It would be profitable here to rely upon decisions reported in (2007) 3 SCC 557 delivered in P.V. George and Ors vs. State of Kerala and Ors. and (2015) 4 SCC 515 delivered in B.A. Linga Reddy and Ors. vs. Karnataka State Transport Authority and Ors. whereby and whereunder it was decided by the Apex Court that the law declared by Court will have retrospective effect, if not otherwise stated to be so specifically.

The situation as it stands that the ratio decided in the case of P.S. Mitra alias Partha Sarathi Mitra (supra) though rendered much before the disposal of such revisional application but the same went unnoticed for reasons whatsoever. For inadequacy and/or obscurity involved in the performance of the stake holders leading to the disposal of criminal revisional application being No. 145 of 2016, the applicability of the ratio decided in the case of P.S. Mitra alias Partha Sarathi Mitra (supra), neither could be challenged for its operation, nor could be applied over there at least for conversion of the application from revision into appeal.

The scope of appeal is undoubtedly larger than the scope available while exercising revisional jurisdiction. But this proposition is subject to the period of limitation, as provided for filing the appeal, and revisional application respectively.

Upon perusal of the grounds as already mentioned hereinabove neither any strong grounds, nor any overwhelming grounds was urged therein at the instance of the petitioner, which might be taken as prime grounds of appeal having a serious, substantial and predominant effect over the sustainability of the sentence awarding comepnsation, other than the grounds already agitated, while assailing the order of conviction and sentence thereunder in connection with a revisional application already disposed of, and for such peculiarity of circumstances involved in this case, it would be without any practical purpose and consequence for giving precedence to such technicality allowing petitioner to repon the case for availing the appellate remedy. Nomenclature of the action already undertaken by the petitioner in the given set of facts does not matter much being not determinative alone and what is more important is the substance of challenge in the action already undertaken having felt aggrieved with the order of conviction and sentence thereunder. In course of such challenge before the revisional court neither any irregularity, nor any illegality could be detected by the revisional court while affirming the order of learned Magistrate. It cannot be concluded as such with all certainty that there will be a gross injustice caused to the petitioner for want of appeal having preferred, what he was authorised to do. Adherence to technicality for the peculiarity of the circumstances involved in the case will simply give a premium to beat the time, so that complaint may not get the compensation or at least further delay is caused in the process, which this court should not allow it to happen any more.

The impugned order thus passed by the revisional court for the discussions made hereinabove would not render the same to be a nullity being without jurisdiction. The decisions thus referred above by the petitioner are without any significant use in the given context of this case.

The revisional application, therefore, fails.

The impugned judgment and order dated 28.08.2018 passed by the learned Additional District & Sessions Judge, 1st Fast Track Court, Bichar Bhavan, Calcutta dismissing the Criminal Revision No.06 of 2018 and thereby affirming the judgment and order dated 08.11.2017 passed by the learned Metropolitan Magistrate, 17th Court at Calcutta in connection with C-1122 of 2005 thus must go unaltered.

The revisionist/petitioner is directed to pay the amount as already ordered by the learned Magistrate within one month from the date of communication of this order failing which learned Magistrate will issue warrant forthwith for realisation of the compensation amount treating as fine after adhering to the procedure as contained in the Code of Criminal Procedure.

With this direction and observation, the revisional application under Section 482 stands disposed of.

The private party No.1 is directed to make communication of this order to both the courts below.

Urgent certified copy of this order, if applied for, be given to the appearing parties as expeditiously as possible upon compliance with the all necessary formalities.