PORESH RANJAN DAS vs THE STATE OF ASSAM AND ANR

This is a criminal revision petition filed under Section 397/401 CrPC, challenging the legality, propriety and correctness of the judgment and order

dated 06.01.2016 passed in Criminal Appeal No.38/2013 passed by the learned Sessions Judge, Hailakandi, affirming the judgment and order dated

16.05.2013 passed in CR Case No. 5(A)/2010 by the learned Addl. Chief Judicial Magistrate, Hailakandi, sentencing the petitioner to pay fine

Rs.1,10,000/- along with fine of Rs.20,000/- in default, simple imprisonment for 6 months under Section 138 of Negotiable Instruments Act, 1881.

Heard Mr. NH Barbhuiya, learned counsel for the petitioner and Mr. G. Agarwal, learned counsel appearing on behalf of the respondent No.2.

The petitioner had issued a cheque in favour of the respondent No.2 for an amount of Rs.1,10,000/- in discharge of his previous debt. The cheque

was presented in the concerned Bank for encashment but the same could not be encashed as “fund was not arrangedâ€​.

After exhausting of all the formalities for notice demanding the money and on the failure on the part of the present petitioner to pay the amount, a

proceeding under Section 138 of NI Act was initiated by the respondent No.2 against the petitioner. The learned Additional Chief Judicial Magistrate,

Hailakandi, after recording the evidence of two witnesses produced by the complainant/respondent No.2 and after appreciation of the evidence on

record, convicted and sentenced the revision petitioner as aforesaid.

It deserves mention herein that the accused-petitioner did not examine any witness in his support but he had disowned the issuance of cheque by

him in his statement recorded u/s 313 CrPC.

A statement recorded, under Section 313 CrPC is not a substantive piece of evidence is a settled position of law. The statement recorded under

Section 313 CrPC, unless substantiated by proper evidence, cannot be denied. As stated above, the petitioner did not lead any evidence in the present

case. There is concurrent finding of facts of the learned courts below as to the issuance of cheque by the accused-petitioner and the failure on his part

to make the payment inspite of notice issued to him, as is mandated by the Act.

Learned counsel for the petitioner has submitted, during the course of hearing, that there was no legally enforceable debt and the account in which

cheque was proposed to be encashed was already a closed account.

On perusal of the materials on record, this Court is of the view that these issues have already been dealt with by the learned trial court and further

appreciation of such facts is unnecessary in view of the proved facts that cheque was issued by the accused-petitioner and it could not be encashed

due to failure on the part of the accused-petitioner to “arrange fundâ€​ in the Bank account.

Learned counsel for the petitioner has referred to the decision of this court rendered in Kuldeep Sharma vs. State of Assam and another in Criminal

Revision No.236/2016 decided on 22.02.2018 and submitted that there was no existence of legally enforceable debt, and therefore, the judgment

passed by the courts below are inconsistent with the law settled by this Court.

The facts of the case cited by the learned counsel for the petitioner is different that of the instant case, and therefore, the decision is not

applicable. In the case, referred to by the learned counsel for the petitioner, the complainant therein had collected Rs.4,00,000/- from his three Bank

accounts and had given it to the respondent, who had failed to prove that he had sufficient fund to lend such amount of money to the petitioner therein.

But in the instant case, there is no statement in the complaint itself that Rs.1,10,000/- was taken from the Bank and it was not with him for lending.

Under such circumstances, facts of the present case cannot be said to be same with the case referred by the learned counsel for the petitioner.

Therefore, the said decision is not applicable in the facts of the present case.

On perusal of the judgments of both the courts below, this Court is of the view that there is no such gross illegality requiring interference by this

Court and therefore, this Court is not inclined to interfere with the findings recorded by the learned trial court i.e. the Additional Chief Judicial

Magistrate, Hailakandi as was upheld by the learned Sessions Judge, Hailakandi.

Therefore, as the cheque amount is concerned, the order for payment thereof as ordered by the learned court of Addl. Chief Judicial Magistrate,

Hailakandi and upheld by the learned Sessions Judge, Hailakandi, is kept intact in view of the materials available on record. However, insofar as the

fine is concerned, this Court is of the view that payment of the principal amount along with a compensation of Rs.2,000/-, will meet the ends of justice.

Accordingly, the judgments of the courts below are modified to the extent that the principal amount of Rs.1,10,000/- shall be paid by the accused-

petitioner with an additional amount of Rs.2,000/-, as compensation.

Send down the LCR forthwith with a copy of this judgment.

The accused-petitioner shall surrender before the trial court, within 2 (two) months from today, to serve out the sentence.

Revision petition stands partly allowed to the extent of modification of sentence, as indicated above.